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EEOC Focuses on Preventing Workplace Harassment

The Equal Employment Opportunity Commission (EEOC) had a busy year in 2017 and was focused in part on creating programs to prevent workplace harassment and disability discrimination.

“The commission believes a concerted effort to promote holistic prevention programs, including training and outreach, will greatly deter future violations,” the agency stated in its latest strategic enforcement plan.

Employment law firm Littler recently issued its seventh annual report on EEOC developments, which analyzed the agency’s activities and strategies during fiscal year 2017 and discussed anticipated trends for the next year.

The EEOC is responsible for enforcing federal workplace laws that make it illegal to discriminate against employees and job applicants based on age, color, disability, genetic information, national origin, race, religion and sex.

Task Force

Sexual harassment allegations against celebrities, business executives and politicians made headlines in October 2017—and the #MeToo movement gained momentum at that time—which put workplace harassment prevention in the spotlight.

The EEOC, however, was way ahead of the pack in terms of identifying ways to prevent harassment in the workplace. The agency had already established the EEOC Task Force on the Study of Harassment in the Workplace and issued a report on the subject in June 2016.

Key task force findings include that:

a) Workplace harassment remains a persistent problem.

b) There is a “compelling business case” to prevent harassment. There are associated direct costs, such as settlement and litigation expenses, and indirect costs, such as turnover and decreased productivity.

c) Senior leadership should be committed to stopping and preventing harassment.

d) Training programs should be “part of a holistic culture of non-harassment” and tailored to the specific workforce.

e) Everyone in the organization should promote respect and civility in the workplace.

Harassment claims aren’t limited to sexual harassment; they can be based on race, national origin and other characteristics, too. But Littler found that 63 percent of harassment lawsuits brought by the EEOC included sexual harassment claims. And 53 percent of those sexual harassment complaints alleged that there were multiple victims, according to Littler’s report.

Those claims can result in multimillion-dollar settlements or jury verdicts. For example, an automaker reached a $10 million settlement agreement in 2017 for claims involving racial and sexual harassment, and a Florida federal jury returned a $17.4 million verdict for female farm workers who alleged repeated sexual harassment.

The agency has taken an incredibly active role trying to be at the forefront of not just what’s actionable but also how to prevent it from happening. Even if employers don’t agree with all the points made by the task force, its findings and report are a great blueprint for employers on how to approach harassment prevention and response.

Interactive Process

Disability discrimination is another area of concern for the EEOC. Thirty-one percent of the EEOC’s merit-based lawsuits filed in fiscal year 2017 included Americans with Disabilities Act (ADA) claims, according to Littler’s analysis.

The EEOC is still very focused on the ADA. The ADA requires employers to provide a reasonable accommodation to qualified job applicants and employees with disabilities unless the accommodation would cause an undue hardship for the business. A reasonable accommodation might mean a modification to the job-application process or an adjustment to the work environment.

Employers should pay particular attention to their obligation to engage in an interactive process with employees or job applicants who indicated that they have a disability and may need an accommodation. Through the interactive process, employers should have an open dialogue with the employee to determine the nature of the disability and whether a reasonable accommodation can be made to enable the worker to perform the essential functions of the job.

Even if employers ultimately can’t make a reasonable accommodation, they have to go through a good-faith interactive process, and they should document that process.

The EEOC may also take a look at leave policies. The agency doesn’t like leave policies with a firm end date. Employers should make sure their policies are open to allowing time off as a reasonable accommodation, even though indefinite leave may not be reasonable.

I think we will continue to see this as a focus of the agency in the future. People are staying in the workforce longer, and, with an aging population, we will likely see more attention focused on accommodations.

Other Priorities

According to the EEOC’s Strategic Enforcement Plan for fiscal years 2017-21, the following six areas will be priorities for the agency:

a) Eliminating barriers in recruitment and hiring.

b) Protecting vulnerable workers, including immigrant and migrant workers, and underserved communities from discrimination.

c) Addressing selected emerging and developing issues.

d) Ensuring equal pay protections for all workers.

e) Preserving access to the legal system.

f) Preventing systemic harassment.

However, changes might be coming. The EEOC’s Strategic Enforcement Plan was issued during the Obama administration. “Once a new [EEOC] general counsel, nominated by President [Donald] Trump, is in place, combined with Senate approval of President Trump’s appointment of a new chair and new commissioner, these priorities are likely to change considerably,” according to Littler’s report.

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