Sexual Harassment Claims in the Post-Weinstein Era
In June 2018 Mr. Miklas spoke with Victoria A. Lipnic, Acting Chair of the Equal Employment Opportunity Commission (EEOC). She spoke about sexual harassment claims since October 5, 2017 – the day the Harvey Weinstein story appeared in the NY Times.
She felt that the hottest issue in employment law right now is sexual harassment. She noted that 25% of the charges that are filed with the EEOC contain some allegation of harassment.
·Florida employers must take steps to make sure there is consistent and demonstrated accountability. It is critical for first line supervisors to know how to respond. This is particularly true if an employee has an allegation of harassment and they go to their first line supervisor. If an employee reports the harassment and hears back, “that’s just Joe. That’s how he is,” this is not acceptable. The first line supervisor needs to know what to do if they receive a complaint. It is not enough for a Florida company or HR director to look back over the last year and think, “we have not had any issues with harassment because we never received a formal complaint.” Ms. Lipnic emphasized that just because your company’s Human Resources department/officials have not received any complaints of harassment this does not necessarily mean that you do not have a problem. Lipnic emphasized that the Task Force Report revealed that 75% of women report that they have experienced some type of harassment. This raises the question of what exactly is the “harassment” experienced. There is a continuum where on one end is legally actionable sexual harassment and on the other end you have conduct that is basically just a sexual put-down. Also, 75% of the people who experience harassment do not report it and do not go to their supervisor. This demonstrates the fallacy of believing that your organization does not have a harassment problem because you have not received any harassment complaints. Also, there is he situation of a “superstar” harasser - someone who is very highly valued by the organization (someone who brings in a lot of clients/business). The organization knows, or has some suspicion, that these behaviors are going on but they turn a blind eye. Post- Harvey Weinstein, Ms. Lipnic has seen the biggest change being that companies are now concerned about their reputational harm from allegations of sexual harassment. Organizations now appear to be more concerned about damage to their brand. Ms. Lipnic recommended that organizations conduct a climate survey to survey the workforce, which could uncover festering problems.
·Florida employers should have strong and comprehensive policies in place. If an employer has a procedure or hotline, they need to check it, so it is trusted by your employees. Updated employee handbooks are a perfect place to outline your policy against discrimination, harassment and retaliation.
·Florida employees should have access to trusted and accessible complaint procedures. Employees must believe that these procedures are taken seriously.
·Florida employers should be doing regular and interactive training that is tailored to that particular audience and that particular location. Lipnic heard from the Task Force that, “[w]e all know that this training has not made one wit of difference.” She was shocked to hear this because the EEOC asks for training as part of equitable relief in every case it settles. The EEOC’s concern currently is that the training employers conduct has become compliance oriented, and is not effective at preventing harassment. There is a concern that training done online is likely less effective than in-person, live training. Lipnic noted that there is not support for online training being effective in preventing harassment. “It is better if the training is in person than online.” The training should be customized for that specific workplace. The more examples you have for that workplace/industry the better. You should include an aspect of civility in the training because situations that lead to harassment tend to be in workplaces that have uncivil aspect to them. Also Lipnic noted that bystander intervention training is a new technique Florida employers should use for training. Lipnic noted that the EEOC now offers a new training module focusing on civility, but many of the EEOC offices are booked 6 months out for this training.
As we previously reported, that Task Force generated a 95-page report 2 years ago, which was 30 years after the United States Supreme Court case that held that sexual harassment is a form of sex discrimination. Several key parts of the Task Force Report, which Lipnic echoed in June 2018 are:
·Florida employers need committed and engaged leadership. It helps if the leadership for the organization shows up for the harassment training and actually stays for it themselves. The leader of the organization should not send the second in command to introduce it, and then leaves. Culture matters. During a conciliation with Ford Motor Company with egregious behaviors, the company had 15 years earlier resolved a similar matter. Although 15 years sounds like a long time to some, from Lipnic’s perspective at the EEOC, this demonstrated that the employer has an unacceptable culture if the same type of allegations are still being alleged.
Ms. Lipnic was clear to say that she was not suggesting that the older style of training never worked. Said another way, don’t throw the baby out with the bathwater. She indicated that some training is usually better than no training, but the EEOC Task Force has recommended this new type of training in hopes of preventing harassment, because the old type of training (any harassment training available prior to the past few months) simply was not effective at preventing harassment in Florida workplaces.
Ms. Lipnic commented that now when the EEOC settles cases, they include a focus on the new type of training. She even commented about some new training ideas, such as training in 15-20 minute bites may be more effective than a one-hour block. Again, “try to offer it in person.”
Ms. Lipnic emphasized that Florida employers should understand that “this topic is not going away.”
Finally, Ms.Lipic asked the hypothetical question to Florida employers. “What do employees think about your human resources department?” She explained that she has heard many times that employees feel that HR is not on their side and is only there to cover up complaints. Ms. Lipnic stated that “some organizations have every type of harassment complaint investigated by an outside investigator” (such as an experienced employment lawyer). These organizations do this to help the employees feel like HR is not just there to protect the organizations. While this has a cost to it, most likely organizations do not have a lot of complaints that need investigated, and using an outside independent investigator can allow your HR department to maintain respect of the employees.
If you own a Florida business and you have questions about sex discrimination and or sexual harassment, you may email the Law Office of David Miklas, P.A. for a consultation or you can call David Miklas at 1-772-465-5111 to discuss sexual orientation discrimination in Florida.
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When that Weinstein story appeared, it was 16 months after the EEOC put together the Task Force on the Study of Harassment in the Workplace.
Lipnic stated that she has spoken with every one of the EEOC’s District Directors and Regional Attorneys around the entire country and they told her if the EEOC wanted to, they could have a docket of nothing but sexual harassment cases. However, the EEOC must also enforce other statutes such as the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), etc. In order to zero in on the sexual harassment problem, without neglecting the other types of discrimination, the EEOC created the Task Force, which we reported on previously.
Lipnic noted that “we all know what legally actionable harassment is, but we need to spend our time on preventing harassment.”
Sex Harassment in Florida: What is Bystander Intervention Training?
How is the EEOC’s new harassment training groundbreaking?
Why did the EEOC Task Force Call on Employers to “Reboot” their Harassment Prevention Efforts?