Over the past week, the US Equal Employment Opportunity Commission has sent a series of signals to US employers that it is focusing its energies on rooting out sexual and other forms of harassment in the American workplace. On Thursday, the agency announced that it had filed seven separate lawsuits against employers throughout the country over allegations of sexual harassment and misconduct, as well as racial harassment and other forms of abuse.
“As the nation has seen over the past nine months, harassment at work can affect individuals for years in their careers and livelihoods,” EEOC Acting Chair Victoria A. Lipnic said in a press release announcing the lawsuits. “There are many consequences that flow from harassment not being addressed in our nation’s workplaces. These suits filed by the EEOC around the country are a reminder that a federal enforcement action by the EEOC is potentially one of those consequences.” About a quarter of the lawsuits filed by the EEOC in recent years has involved an allegation of harassment, Lipnic added, as do one third of the 80,000 to 90,000 discrimination charges the EEOC receives each year.
The EEOC also recognizes that most instances of harassment never come to its attention. Studies show that more than 80 percent of harassment victims never file a formal complaint, the agency noted in its statement, while nearly three quarters never even raise the issue internally within their organizations. To that end, and in light of the heightened public consciousness of sexual harassment brought about by the #MeToo movement, the agency is also looking to promote changes in American workplace culture to make harassment less common and more likely to be addressed when it does occur.
On June 11, the EEOC reconvened its Select Task Force on the Study of Harassment in the Workplace, a panel of experts including academic scholars, legal practitioners, and representatives of advocacy groups and organized labor, which was established in 2015 to study the problem of harassment (including, but not limited to, sexual harassment) and what employers and the agency itself could do to prevent and respond to it. In her opening remarks at last Monday’s meeting, Lipnic, who co-chairs the task force along with Commissioner Chai R. Feldblum, stressed that harassment had been on the EEOC’s radar for some time, but that the government could not solve the problem alone:
The legal prohibition of harassment in the workplace has been the law of the land for over 30 years now. Since before even that, the EEOC has been combatting harassment of all kinds, on all bases, in all types of workplaces, everywhere. That’s what this agency has been doing, day in and day out, since before many in this room were even born. But now, nine months into this great cultural awakening, we, the EEOC, and everyone involved in this, find ourselves dealing with many “second and third generation” issues. By that I mean, legal and other issues that have emerged to the forefront of all the recent attention – critically important, often complex issues that are now demanding attention. That is what we hope to explore today.
But first, a reminder is in order. This is a point we made upfront in the introduction to our final report. While the EEOC has been, and will continue to be a leader on this topic, we are only one player.
The experts who testified to the task force last Monday discussed some of the legal controversies around sexual harassment, including the question of whether enforcing arbitration clauses and non-disclosure agreements in employee contracts is harmful to victims. Washington State has banned these instruments from being enforced in sexual harassment cases, while Uber and Lyft have voluntarily chosen to stop forcing arbitration of harassment claims. Some employer-side attorneys defend these practices, however: Kathleen McKenna, a partner at Proskauer Rose, testified to the task force that arbitration provides a neutral and confidential process to resolve individual harassment complaints for conduct that employers “invariably prohibit and work to guard against.” Prohibiting non-disclosure agreements could be counterproductive, she argued, by leading to an increase in litigation rather than private resolution.
Other experts at the meeting highlighted some of the successful approaches employers are taking to make sexual harassment prevention training and reporting more effective:
Jill Geisler, a fellow with the Newseum’s Freedom Forum Institute, described the Power Shift Project, a solutions-based effort about what newsrooms and media organizations are doing to deal with emerging cases of sexual misconduct, and what systemic changes are needed to end harassment and promote opportunity for all. While discussing the Power Shift Summit, the kick-off event for the project, Geisler described “a sense of new urgency and serious commitment among participants to fix these problems and create meaningful, sustainable change.”
Kasey Nalls, a member of the union UNITEHERE, described the “Hands Off Pants On” campaign that was spearheaded by UNITE HERE Local 1 and the Chicago Federation of Labor two years before the #MeToo movement exploded last fall. The initiative helps protect hotel workers from sexual harassment and assault by guests and an ordinance adopting it was unanimously passed by the Chicago City Council in October 2017. “Since the anti-sexual harassment policy went in to effect in January 2018, we’ve observed a chipping away at culture that permeates the hospitality industry that the “‘guest is always right,'” said Nalls.