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Written Testimony of Anna Park, Regional Attorney, EEOC, Los Angeles District Office

Thank you for the opportunity to address the Harassment Task Force.  I am the Regional Attorney for the Los Angeles District office.  My team and I are tasked to litigate cases on behalf of the Commission in our region which covers half of California, Nevada, Hawaii, and the Pacific Islands such as the Commonwealth of the Northern Mariana Islands, Wake Island, Guam, and American Samoa.  Within our vast geographic region, we also have a very diverse population.  Harassment cases remain a large part of our caseload. These are not only sexual harassment cases, but also harassment cases based upon national origin, race, color, and age.

Industries that have a higher concentration of harassment include agriculture, hospitality, the food industry, and janitorial services.  We have heard from multi-generational farm worker women tell stories of being subjected to egregious sexual harassment, some being raped to keep their jobs.  Some who are brave enough to complain are either swiftly fired or their complaints are ignored.  Some employers fail to have basic policies and procedures in place because the industry has long ignored their obligations under federal law, as shown in cases out of our region like EEOC v. Global Horizons, et al., EEOC v. Rivera Vineyards, EEOC v. Cyma, EEOC v. Giumarra, and EEOC v. Adams Brothers.

We hear similar stories in the janitorial services industry, particularly of women fearing that they may lose their jobs if they complain or that they fear their family members may also lose their jobs with the same employer.  These women, oftentimes monolingual Spanish speakers, are subjected to great stigma by their friends and family, sometimes blamed for somehow causing the harassment rather than focusing on the illegality of the act or the employer's responsibility to protect them.

These two industries, agriculture and janitorial services, were the focus of two stories by Frontline, highlighting the persistent problems of sexual harassment in the workplace, featuring EEOC's cases.

Some key components that we can do to combat harassment is to ensure (1) effective training, (2) effective mechanisms to address harassment, (3) a system of accountability and (4) monitoring.

Without each of these four elements working together, harassment cases will continue to persist in the workplace.  The EEOC's role must be to continue to ensure that each four components are being address by employers when addressing harassment issues.

Training

With respect to training, they must be effective. Most companies are moving away from live training and focusing on online or cursory training. Effective training requires interaction and include managers/supervisors, and non managers.  The ability of managers or non managers to ask questions openly and freely is a key component of effective training.  The training should always cover a company's policies and procedures to ensure that all employees are aware of the company's mechanisms in case they are faced with harassment. It should address a supervisor's responsibility.  This is particularly important in the fast food industry where the managers and supervisors are oftentimes very young. Oftentimes this is their first job so proper training about their responsibilities is imperative.  Without proper training and accountability, we continue to see cases in the fast food industry.  EEOC v. Pizza Hut, EEOC v. Quiznos, EEOC v. Panda Express, and EEOC v. Senor Frog are just a few cases with this very dynamic.

California is uniquely situated because under state law, employers over the size of 50 have been required to train supervisors and managers for two hours every two years.  While our state counterpart has seen a decrease in the number of sexual harassment charges, the EEOC charge intake has not. Instead, we have seen a marked increase in the severity of harassment, particularly sexual harassment cases.  We have seen this rise with the most vulnerable of workers, people with have limited English proficiency, for example monolingual Spanish speakers or of Asian descent.

There are unique challenges to a workforce that are comprised of women who have limited English capacity who are more susceptible to being harassed and oftentimes we have seen companies disregard their complaints. Companies must be able to communicate with a person in a language they understand from an independent source. 

In EEOC v. Mandalay Bay, Asian kitchen workers were subjected to harassment and retaliation due to their race and national origin. In that case, the supervisor acted as a translator for the monolingual Chinese speaking kitchen workers.  As a result the manager did not learn that the very supervisor acting as the translator was being accused of the intimidation and harassment.  As a result, a component of the Consent Decree was for the company to expand its language capacity in their human resources department to ensure that there was an independent means to communicate with employees making complaints.  Policies and procedures were also translated into at least the five dominant languages spoken. 

Proper Mechanisms to Respond to Complaints with Effective Investigations

While employers may conduct training, that alone is not enough to stop harassment in the workplace.  Effective policies and procedures must exist that are followed.  Moreover, once a complaint is made, an employer must effectively investigate the complaint.

Employers struggle to properly investigate. This is where the main focus of our attention should be along with accountability. Some key failures include: (1) failure to identify a complaint of harassment, (2) failure to expand the scope of the investigation, (3) failure to properly interview witnesses, and (4) failing to properly analyze the information gathered.

In EEOC v. Pioneer, a group of housekeepers were subjected to harassment based upon their color and national origin, being called wetback, burrito, aliens, and the "n word" among other things.   Despite receiving written complaints, the company did not interview the employee making the complaint. One alleged discriminating official did admit to making a comment so the company took no further action.  As a result, it failed to uncover a class of individuals that we later identified were discriminated against by multiple alleged bad actors. 

In EEOC v. ABM, despite receiving written and verbal complaints from numerous sources, the company failed to properly expand the scope of its investigation. It did not interview the women that worked in the various regions where it received complaints.  The interviews were not done by trained professionals, and the conclusions drawn were not consistent with any of the facts the EEOC discovered.  The EEOC, during its investigation, gave notice to the employer that an alleged discriminating official was a known sex offender and because there were allegations of rape at the workplace, that the company was informed to take steps to ensure the safety of the other women.  The company did very little with that information and the alleged bad actor remained at work with supervisory authority.  The message was clear through their inaction, that complaints by a predominantly monolingual Spanish speaking workforce were not important and that the company was not going to protect them.

Again both companies pointed to written policies and procedures.  Unfortunately they failed to follow them.

System of Accountability

Even after an employer may have properly investigated a complaint of harassment, steps must be taken to hold alleged bad actors accountable.  The lack of accountability sends a message that complaints will not be addressed.

This also undermines the effectiveness of any training. Without proper accountability measures training becomes meaningless and a futile exercise.  The employees lose faith and trust that the employer will do anything when a complaint is made.  We have required audits by third party monitors or trained human resources professionals to visit isolated or key locations where harassment occurred.  Audits and visits re-enforces that all employees are held accountable regardless of their position or rank.

Monitoring

The final component that is needed to address harassment should be through monitoring.  Even if an investigation does not yield a violation, an employer should monitor whether there is retaliation occurring or that complaints of harassment may be occurring.  This also assists the employer in ensuring that if action is taken, that there are no repercussions from them.  Employers should centrally track complaints and investigations. This is a means by which a company can identified alleged repeat offenders.

Conclusion

In conclusion, while much of the focus of harassment has been on training, the true focus should be on ensuring proper investigations.  To properly correct and prevent harassment, employers need effective policies and procedures that are followed with strong accountability measures.  The phrase, "action speaks louder than words" rings true in harassment cases.   Thank you.