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

Written Testimony of Rae T. Vann, General Counsel
Equal Employment Advisory Council
and Member of the Select Task Force

Chair Yang, Co-Chairs Lipnic and Feldblum, and Commissioners Barker and Burrows:

Thank you for the opportunity to testify before the Commission today, alongside my colleague Joe Sellers, as a representative of the Select Task Force on the Study of Harassment in the Workplace. I am especially grateful to Commissioners Lipnic and Feldblum for their strong and steady leadership this past year. The example they set made it possible for a diverse group of professionals representing the interests of many different stakeholders, who are not always on the same page, to coalesce around the universally-important issue of addressing workplace harassment. I also must thank Joe Sellers and my other colleagues on the Task Force, who all brought an incredible sense of purpose, energy and dedication to our work and from whom I learned a great deal.

I am pleased to have served on the Task Force as one of several practitioners representing the interests of the respondent community. For over twenty years, I have been deeply involved in working with employers to develop meaningful and effective EEO, nondiscrimination and anti-harassment compliance programs. For the last nine years, I have served as General Counsel to the Equal Employment Advisory Council (EEAC), a nationwide association of employers organized in 1976 to promote and advance sound approaches to the elimination of employment discrimination. Its membership is comprised of over 250 major U.S. corporations, and its Directors and Officers include many of the nation's leading experts in the field of equal employment opportunity and workplace nondiscrimination compliance.

The employer community generally, and EEAC member companies in particular, have a strong interest in proactively preventing workplace harassment and, where issues do arise, ensuring that reports of harassing behavior are taken seriously and resolved swiftly and effectively. Responsible employers are deeply committed to fostering corporate environments and cultures that are inhospitable to the types of attitudes and behaviors most likely to increase the risk of harassment - which, in addition to creating potential legal liability, also often lead to less efficient and productive workplaces.

We all agree that there is still work to do in achieving workplaces that are free from harassment on the basis of race, color, sex, religion or other statutorily-protected characteristics. That said, the Task Force report adds tremendous value to that effort by highlighting suspected underlying risk factors for workplace harassment, examining the efficacy of conventional prevention efforts, and offering several "promising practices" aimed to curb this all-too- persistent problem.

For me, the Task Force report offers three very important takeaways. First, despite the Commission's best efforts, and those of employers, advocates, and other important stakeholders, workplace harassment continues to persist at unacceptable levels. I am very optimistic that the Task Force report will reenergize meaningful, proactive prevention efforts, educate employers about the undeniable business case for such efforts, and empower those being subjected to (or witnessing) harassing conduct to come forward with the confidence that they will not be unfairly penalized for having done so.

Second, prevention should be at the forefront of our minds. I am fairly confident in suggesting that the Commission would be happy if it never were to receive another harassment charge. So would its stakeholders. With that in mind, Commissioners Lipnic and Feldblum made a concerted effort to understand whether and to what extent harassment "risk factors" exist, and what efforts can be made to address those risks. The Task Force heard from a number of witnesses who confirmed the need to identify and monitor for conditions that could encourage the types of behavior that may not be actionable on their own, but if left unaddressed could lead to unlawful harassment. It is my hope and expectation that employers and other stakeholders will be able to use that research to refine and improve their harassment prevention efforts.

Finally, and to that end, while corporate anti-harassment training is included in virtually every prevention program, often it is the only method consistently used proactively to educate employees about their rights and responsibilities under EEO and nondiscrimination laws and company policies. Research increasingly suggests that the most effective corporate anti-harassment efforts combine meaningful and differentiated employee training with other proactive measures. At bottom, however - and as Commissioners Lipnic and Feldblum conclude in the Task Force report - meaningful, differentiated anti-harassment training, if developed and delivered in a thoughtful and meaningful way, remains an indispensable part of an employer's overall discrimination and harassment prevention program.

Also, while most employers have become adept at identifying potentially harassing conduct of a sexual nature or that is based on an individual's gender, the Task Force Report raises public awareness about other forms of workplace harassment, in particular that which is based on an individual's race, national origin, age, disability, or religion.

The persistence of protected-basis harassment in American workplaces, even at a time when federal employment nondiscrimination laws and enforcement efforts are as tough as ever, strongly suggests that traditional anti-harassment practices are in need of a re-boot. It is my sincere hope and belief that the Task Force Report will empower business leaders to renew their commitment to seeking innovative and smart ways to prevent workplace harassment and to promote safe, respectful and inclusive workplaces.