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

Written Testimony of Joseph M. Sellers, Partner, Cohen Milstein and Member of the Select Task Force

Thank you for the opportunity to appear before the Commission to share my views about the work of the Select Taskforce on Workplace Harassment and for the honor of serving on the Taskforce. I found my work on the Taskforce among the most significant of my career because of the importance of the subject the Taskforce was addressing and the success I believe the Taskforce achieved in the work it produced and the manner in which it produced that work. Along with Rae Vann, another member of the Taskforce and a new colleague and friend, I am proud to represent the Taskforce members at this hearing.

Like each of the Taskforce members, I have had a substantial career in equal employment law. I have practiced law for more than 35 years, mostly in the representation of workers who claim they have been denied equal employment opportunities in violation of federal, state or local laws. A significant part of my practice has involved the representation of persons claiming to have been victims of harassment in the workplace. That work includes the first trial to judgment before a jury of a class action alleging wide spread sexual harassment against a District of Columbia agency, an individual trial to judgment before a court proving sexual harassment where no male comparators or sexual conduct was in evidence against a federal agency, an individual trial alleging racial harassment against another federal agency and the representation of a plaintiff alleging sexual harassment against a private company in a landmark case on remand from the United States Supreme Court. Along with other workers who pursued claims of various forms workplace harassment, I have also counseled scores of workers who elected not to commence legal proceedings to challenge the harassment they reported to me.

Over the span of my career, I have found workplace harassment to be a critically important subject because of its toxic effect on its targets and the many others in the same workplace, the ease with which some confuse it with socially-acceptable behavior, the reluctance of many harassment victims to challenge the conduct formally or informally and its recurrence in some workplaces in this country. Few forms of conduct have the power of harassment to demean the dignity of their targets and tear at the social fabric of our community. While our judiciary has become more sophisticated in its treatment of harassment claims, in my experience a challenge to workplace harassment remains a daunting course of action for most who claim to have been its victims. Apart from the burdens and economic and personal cost of litigation, harassment typically undermines the self-confidence of its targets, breeding shame and doubts about its cause that deter most but the most desperate or determined from challenging it.

The importance and power of workplace harassment and the frequent difficulty in detecting its presence absent the rare legal challenge make the study of this phenomenon very important but the proof of its existence somewhat elusive. For this reason, I want to commend the Taskforce Co-Chairs, Commissioners Lipnic and Feldblum, for choosing to focus part of their report on factors that may heighten the risk of workplace harassment, rather than trying to ascertain its existence, and leaving to the Commission's legal guidance and the courts what conduct qualifies as actionable harassment. Ultimately, as the Report reflects, I believe that conditions which heighten the potential for workplace harassment, whether or not actionable harassment is claimed or proved, are just as worthy of attention as occasions where harassment is demonstrated to have occurred. Employer and employee alike are often more effective in preventing workplace harassment by curbing or addressing conditions in which it could arise rather than combatting harassment after it is detected. Recognition that there are identifiable factors that can heighten the risk of workplace harassment along with the value of properly designed training programs, the leadership by word and example of top managers and some innovative new strategies for intervention by third parties make the report, in my view, an important contribution to the understanding and prevention of workplace harassment.

I also want to comment on the composition and operation of the Taskforce, as I think it could serve as a model for other efforts requiring the Commission to explore sensitive subjects that would benefit from multiple stakeholder perspectives. As the Taskforce membership was comprised of representatives of management, labor, employees and academia, the Taskforce discussions were informed by people with decades of experience in their respective fields. The mix of meetings open and closed to the public ensured valuable public participation while promoting candor in the exchange of our views. And the co-chairs of the Taskforce ensured all topics were discussed in a balanced manner and, by assuming responsibility for preparing a report informed by our discussions, they promoted vibrant exchanges while relieving us of the need to forge a consensus on any of the points discussed. I found this model very effective and commend it for future use by the Commission.

I hope the work of the Taskforce that informed the Report of the Co-Chairs is as useful to the Commission and the public as it was satisfying to perform it.