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Meeting of 6-20-16 Public Meeting on Proposed Reboot of Harassment Prevention Efforts

Written Testimony of Victoria A. Lipnic
Commissioner, EEOC

Thank you Madame Chair, my fellow Commissioners. I am pleased to appear before you today, along with my colleague Commissioner Feldblum, to present our report as the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace.

Let me first thank you, Chair Yang, for your leadership in creating the Task Force - it was an honor and a privilege to serve as a Co-Chair. I would also give my deepest thanks to the members of our staff, the Task Force members themselves, the witnesses from which we heard testimony, and all at the EEOC who made the Task Force a successful endeavor. I associate myself with Commissioner Feldblum's remarks about how the diversity of experience and viewpoints on the Task Force was among its chief strengths, and truly made our work enjoyable, but more important, I think - useful.

My interest in harassment dates back to when I first came to the Commission nearly six years ago. At that time, I mentioned to then-Chair Jackie Berrien that I was surprised at how many cases of harassment, especially sexual harassment, we at the EEOC continue to see each year. She asked me to look into, and, I learned, after having a conversation with every EEOC district office and Regional Attorney, that, if we wanted to, we could have a docket of nothing but sexual harassment cases. When you add to that the harassment charges we see on all other bases, that fact alone truly gives you pause. Thirty years after the Supreme Court laid down the law and set the standard for employers, how do we find ourselves with still so much work to do?

Commissioner Feldblum just detailed what we learned about the prevalence of and employee responses to harassment. I would like to discuss several of what I think are the important "take-aways" from our report: the business case to be made for stopping harassment; our work with respect to identifying risk factors for harassment; and our recommendations regarding anti-harassment policies and training.

The Business Case for Stopping Harassment

As an enforcement agency, we began the work of the task force well aware of the legal costs of harassment. Investigations and litigation of harassment can come at a steep cost for employers. In 2015 alone, the EEOC secured $164.5 million for workers alleging harassment - and that doesn't include employers' legal fees and costs. Also relatively well known, though less quantifiable, is the reputational harm of public reports of harassment, for example, in the press. We knew about all that. As do most employers. When they consider the costs of harassment, they tend to focus on legal liability - and with good reason. However, it became increasingly clear that we needed to tell the whole story. Yes, employers should care about preventing harassment because it's the right thing to do . . . and because it's required of them . . . and because it will help avoid legal costs. But, employers should also care about preventing harassment because it makes good business sense across the board. First and foremost, harassment comes at a steep cost to those who suffer it - mental, physical, and economic harms are, unfortunately, common outcomes. Harassment can similarly affect others in the workplace, too, including co-workers who witness or perceive it.

The debilitating effects this can have on a workplace - the true costs of harassment - include decreased productivity, often in the form of disengagement; increased turnover of the workforce; and, more discrete forms of reputational harm such as turning off customers or potential new hires. And, importantly, these effects are a net negative for employers even when the harasser is a top performer, or "workplace superstar." When looked at this way, harassment can be a serious drag on arguably an employer's greatest asset - its employees - which ultimately damages the bottom line. We hope our report gets businesses to take note of this important point.

Risk Factors for Harassment

As was mentioned, our efforts over the past year with the Select Task Force focused broadly on unwelcome conduct in the workplace - we wanted to find ways to help employers and employees prevent such conduct before it rose to the level of illegal harassment. Several members of the Select Task Force suggested that we identify elements in a workplace that might put it more at risk for harassment. The thought was that if we could identify "risk factors," that might give employers a roadmap for taking proactive measures to reduce harassment in their workplaces. Rather than focus on individual behavior, we decided to focus on organizational factors or conditions that may increase the likelihood of harassment.

The report identifies a dozen workplace risk factors - although I am sure we could think of more. Some of them seem fairly straightforward and common-sense - it seems logical that a workplace with a largely homogenous workforce might see harassment of a small number of "different" workers. Others were ideas we hadn't really thought about as a possible trigger for harassment. One witness told us how, at a museum, its security guards had fairly monotonous routines, and were engaging in harassing behavior to combat boredom or pass the time. The solution was for the museum to vary the guards' duties and routines, so that there wasn't that lengthy monotony - a simple solution, but one that had eluded the employer.

Now, most if not every workplace will contain at least some of the risk factors we discuss in the report. And, to be clear, the existence of risk factors in a workplace does not mean that harassment is occurring in that workplace. But, the presence of one or more risk factors suggests that there may be fertile ground for harassment to occur, and that an employer may wish to pay extra attention in these situations, or at the very least be cognizant that certain risk factors may exist. Finally, this was yet another example of how our task force worked so well together, and how the contributions of our witnesses was so valuable - having a broad range of backgrounds and prior experience ON the Task Force, and speaking TO the Task Force, made this possible.

Policies and Procedures

Our report makes a number of recommendations regarding employer anti-harassment policies. Employers need to adopt robust policies that make clear harassment on any protected basis is prohibited, and they need to implement them in a similarly robust fashion. The policy, and in particular details about how to complain of harassment an employee suffers or to report harassment he or she sees, needs to be communicated frequently to employees, in a variety of forms and methods. Where possible, we recommend that employers offer reporting procedures that are multi-faceted, offering a range of methods, multiple points-of-contact, and geographic and organizational diversity, where possible, for an employee to report harassment. Above all, employees must have faith in the reporting system.

We also specifically note the importance of employers considering, as they write and update anti-harassment policies - perhaps in the "reboot" of harassment prevention we call for in our report - the proliferation of employees' social media use. As we heard in our Commission meeting on social media in 2014, social media can be a wonderful tool for bringing co-workers together and bonding over shared interests - but it can also all too easily be used as a tool to harass or beleaguer a colleague. It must be treated like any other form of social discourse within and among the workforce. Simply put, harassment should be in employers' minds as they draft social medial policies, and social medial should be in their minds as they draft anti-harassment policies.

Training

Our report includes a number of very specific recommendations regarding anti-harassment training.

Given the amount of resources employers devote to training, and the fact that training is one of the primary mechanisms used to prevent harassment, one of the earliest things we explored is whether training is effective in preventing harassment, and if so, whether there are some forms of training that have better outcomes than others.

On that point, we had some interesting insights. First, it became clear to us that too much of what we've been doing in the last thirty years hasn't worked - that fact is empirically evident in the academic literature, and was echoed by witnesses and Task Force members who have devoted their careers to working on these issues. Training may be helpful in satisfying an employer's legal compliance, or making out an affirmative defense to liability - but as a stand-alone tool to prevent and reduce harassment in the workplace, it just has not proven to be effective. In simplest terms, training must change.

Now I want to be clear - that does not mean we are suggesting that training be thrown out, far from it. Rather, we conclude that training - and I mean good training, and our report includes a number of suggestions as to what that means - needs to be part of a holistic, committed effort to combat harassment, focused on the specific culture and needs of a particular workplace. In fact, based on the practical and anecdotal evidence we heard from employers and trainers, we conclude that training is an essential component of an anti-harassment effort. But to be effective in stopping harassment, it cannot stand alone.

That leads me to my final point, and you'll hear me now echo some of what Commissioner Feldblum said earlier. If there is one, top-line, over-arching message that came through to us it's that leadership and accountability are key.

An employer can have a robust harassment reporting system, offer great training, and assess its workplace for risk factors six ways from Sunday, but it there is not committed leadership and buy-in from the very top of the organization, it may all be for naught. Leadership means devoting the time, energy, and resources necessary to harassment prevention, and modeling those behaviors at the highest level to create a corporate culture where harassment is simply not tolerated.

There needs be accountability - and accountability must be demonstrated. That means prompt, effective, and thorough investigation of harassment complaints. It means ensuring that where harassment is found to have occurred, the harasser should be appropriately and proportionately sanctioned. When employees who are responsible for anti-harassment efforts are succeeding, they need to be rewarded. And where they are failing, they need to be brought up to where they need to be.

One point that I know one of our witnesses on the next panel, Fran Sepler, who delivered excellent testimony to the Task Force, will amplify. We specifically recommend that employers dedicate sufficient resources to train middle-management and first-line supervisors on how to respond effectively to harassment that they observe, that is reported to them, or of which they have knowledge or information - as Fran will explain, they will often be the best, first line of defense for employers in preventing and responding to harassment..

Finally, let me say, our report contains recommendations for a range of stakeholders - not just employers, and certainly not just the EEOC. I think that fact alone underscores the role each of us, and all stakeholders, have to play in combatting workplace harassment.

In closing, I'd like to note a comment of one of our Task Force members, Brenda Feis, a prominent attorney in Chicago who has handled many harassment cases, now as a plaintiff-side attorney. Brenda remarked that she was struck by how, if you had walked into any one of the meetings of the Task Force on any given day and listened to the questions being asked by Task Force members of the witnesses, or the subsequent discussion, you would have had no idea who spends their time as a plaintiff's attorney or defends management. It was that level of collaboration, consideration, and thoughtful analysis that characterized every aspect of the Select Task Force, and again, I am honored to have co-chaired it.

I could go on another hour, but I see my time is up. I thank you for giving us this opportunity. It is my hope that today starts a national effort, by employers large and small, to reboot harassment prevention. Thirty years is long enough.