Workplace Harassment, Discrimination at Tipping Point

February 20, 2018

Workplace Harassment, Discrimination at Tipping Point

News of sexual harassment in the workplace has entered the mainstream with tremendous force, paving the way for what EEOC Commissioner Chai Feldblum sees as a defining moment for society and corporate culture. Feldblum offers cautions and suggestions as companies protect against workplace harassment and discrimination.

The U.S. has witnessed the disclosure of allegations of sexual harassment by high-level executives and power players in some of the biggest U.S. industries. Feldblum notes that to make significant change concerning the prevalence of sexual harassment, two tipping points need to occur: an awareness tipping point and an action tipping point. Feldblum believes the news cycle of the past several months is leading towards the “first” awareness tipping point, creating a watershed moment on this issue.

The “Superstar Harasser”

Feldblum points out the problem of the “superstar harasser,” i.e., the high-performer harasser whom employers are often hesitant to discipline. She cautioned companies about research showing that the cost of keeping a toxic person in the workplace is much higher than the cost of terminating that person, regardless of the monetary value that person adds to the business. Such hidden costs include the impact on the health and workplace productivity of the person who is the target of the harassment, the impact on the health and workplace productivity of those who witness the harassment, the cost of turnover, and the impact on a company’s reputation (affecting both client acquisition/retention and ability to recruit strong candidates for employment).

Feldblum says that companies often forget to take into account these hidden costs and thus make the wrong cost-benefit determination when deciding to keep the “superstar harasser.” She advised that a company’s bottom-line would be better served by terminating the harasser and by affirmatively communicating the termination and real reason for it to its workforce.

It is imperative HR professionals view “superstars” not only as revenue-generators, but also as a potential pool of various, and increasingly significant, legal and operational risks. Employers should avoid the temptation of “burying their heads in the sand” when assessing and evaluating (formally or informally) superstars in the workplace. Remain cognizant, for example, of (a) the superstar's day-to-day workplace interactions, (b) the extent to which there might be significant turnover within that superstar's universe of direct reports, (c) the extent to which there might have been multiple complaints filed against that person, or (d) potential office chatter about that superstar's conduct around his/her colleagues, both in the office and at work-related events outside the office.

Combatting Harassment

In 2018, employers may expect to see a large increase in sexual harassment charges filed with the EEOC, Feldblum says. In fact, the agency has seen a 400 percent increase in visits on its harassment webpage in the last month. With this statistic as background, here are best practices Feldblum noted employers should follow to avoid harassment and harassment-related costs. 

  • First, a company’s leadership should loudly and affirmatively communicate that harassment is unacceptable and will not be tolerated. 
  • Second, employees need to believe these employer statements.
  • Third, employers should have written harassment policies that contain comprehensive reporting and investigative systems.
  • Finally, companies should employ training that seeks to change behavior, including by-stander intervention training and separate training sessions for supervisors to learn how to be open to and properly field reports of harassment.

Taken together, Feldblum's comments regarding harassment training highlight an important takeaway for human resources professionals—do not simply assume the training an employer has done in the past will be effective in perpetuity. Rather, human resources professionals must take a nuanced look at their present/evolving workplace and then tailor their training programs, both in terms of content and format, in ways that will make the programs most impactful. This may mean, for example, (a) changing dated hypotheticals and drafting fact patterns which will actually resonate with attendees, (b) introducing new and innovative types of policies designed to combat harassment/discrimination in today's workplace (e.g., by-stander training), (c) having participants play a more active role in the training programs (e.g., role playing); and (d) highlighting to an even greater and more explicit degree that the company welcomes, encourages, and appreciates employee complaints, without which the company cannot make necessary changes and ensure it is maintaining the type of culture in which all employees can thrive. 

LGBT Discrimination

In addition to sexual harassment, one of the EEOC’s stated priorities in recent years has been advancing its position on sex-based discrimination based on its expansive reading of Title VII of the 1964 Civil Rights Act. The agency deems the statute’s existing bar on discrimination based on sex necessarily includes protection against sexual orientation bias.

As the situation evolves, employers should nonetheless continue to expect strict enforcement on charges of discrimination based on gender identity and sexual orientation, Fedlblum says, adding that sooner or later the issue is bound to become a matter of public policy.

Employers must be cognizant of the significant legal risks inherent in allowing gender identity/sexual orientation discrimination to occur in their workplace. First, completely separate and apart from federal law, many states and cities expressly prohibit this type of discrimination in the workplace. In such jurisdictions, it seems highly unlikely that employers will be able to successfully defend gender identity/sexual orientation discrimination claims by pointing to favorable federal case law or DOJ pronouncements. 

Separately, even in those jurisdictions which do not flatly prohibit gender identity/sexual orientation discrimination, employers must also be mindful of their corporate climate on this highly topical issue. Indeed, even in jurisdictions which do not prohibit gender identity/sexual orientation discrimination, many companies (including companies that operate in multiple states) may voluntarily decide, as a matter of policy, that they will nevertheless not tolerate any such discrimination in its workplace. This decision may be influenced by non-legal factors such as employee morale, employee retention, and public-facing branding. 

Age Discrimination in the Workplace

With this year as the 50th anniversary of the Age Discrimination in Employment Act, the EEOC will place what Feldblum describes as intense focus on initiatives to tackle age discrimination. In particular, a priority issue for the EEOC this year is combatting hiring barriers for older workers. 

For instance, employers should train hiring managers to eliminate questions during applicant interviews concerning age or college graduation dates, Feldblum cautioned. As to those employers who stereotype older workers as not technologically savvy, Commissioner Feldblum related that employers should ensure job qualifications requiring knowledge of new technologies are necessary and are clearly and narrowly defined. In addition, where older workers do demonstrate the capacity for technology-heavy roles, employers should overcome their biases and hire such older applicants.

The Authors: 

Matthew Steinberg is a labor and employment partner at Akerman LLP in New York, and the creator and host of the employment law podcast WorkedUp.

Rebecca Barrett, who contributed to this piece, is a labor and employment associate at Akerman LLP in New York.

For more on these topics, listen to the WorkedUp podcast on the Superstar Harassment Problem or Other Emerging EEOC Trends