Seyfarth Synopsis: The EEOC’s Select Task Force on the Study of Harassment in the Workplace offers insight into how employers’ harassment prevention policies can change for the better and, in furtherance of this desire for change, calls for interagency clarification between the EEOC and the NLRB on how employers may investigate harassment while requesting confidentiality, how they may promote general civility through workplace harassment policies, and how employers may prevent and respond to harassment through social media.

On June 20, 2016, the Equal Employment Opportunity Commission’s Select Task Force on the Study of Harassment in the Workplace released its final report. The report can be found here. The report found that workplace harassment remains a persistent problem and that harassment often goes unreported. The Task Force urged that harassment prevention training must change as much of the training done over the last 30 years, which focused simply on legal compliance, has not been effective as a prevention tool. It should be noted that in reaching this finding, the Task Force admits that there are deficiencies in almost all of the empirical studies done on the effectiveness of training standing alone. However, the Task Force concluded that the existing reliable studies, along with the practical and anecdotal evidence provided by employers and trainers agree that training cannot stand alone, but must be a part of a holistic effort to prevent harassment.

The Task Force recommended that new and different training approaches should be explored to empower “bystanders” to intervene when they witness harassing behavior and training ought to be geared towards promoting respect and civility in the workplace generally, without necessarily focusing on protected characteristics. Additionally, the report suggests that employers may need to reassess their harassment reporting systems and find ways to ensure that employees believe there will be a genuine effort to resolve harassment when it is reported. The report offers recommendations and helpful tools to aid in designing anti-harassment policies, training curricula, implementing complaint, reporting and investigation procedures, and assessing and responding to workplace “risk factors” for harassment.

Additionally, employers will be happy to know that the report emphasized that the EEOC and the National Labor Relations Board should work together to harmonize the relationship between federal EEO laws and the NLRA. Employers have often struggled to comply with both federal EEO laws and the NLRA in preventing and investigating workplace harassment. This is especially true when employers craft their harassment prevention policies with a focus on workplace civility. See Karl Knauz Motors, Inc., 358 NLRB No. 164 (2012) (finding that “Courtesy” rules in the employee handbook violated the NLRA because an employee may reasonably believe that such rules prohibited statements of protest or criticism of the employer); First Transit, Inc., 360 NLRB No. 72 (2014) (same).

The same is true when employers ask for confidentiality in the course of investigating harassment, something promoted in the report but in conflict with several rulings of the NLRB finding that requests for confidentiality may burden protected concerted activity under the NLRA. Likewise, because of the ever increasing use of social media and its effect on the workplace, employers are often in the difficult position of trying to stop online harassment while simultaneously complying with decisions of the Board finding that employers’ social media policies restrict Section 7 rights if they sweep too broadly.

The report recognizes the tension such rulings may create and their potential to undermine genuine harassment prevention. As such, the report issues the following recommendations in the hopes of getting employers out of this difficult bind.

  • The EEOC and the Board should confer, consult, and attempt to jointly clarify and harmonize the interplay of the National Labor Relations Act and federal EEO statutes with regard to the permissible confidentiality of the workplace investigations, and the permissible scope of policies regulating workplace social media usage.
  • EEOC and the National Labor Relations Board should confer, consult, and attempt to jointly clarify and harmonize the interplay of the NLRA and federal EEO statutes with regard to permissible content of workplace “civility codes.”

We believe that this is a positive development from the EEOC, and we know that loyal blog readers will appreciate any efforts at interagency cooperation. We hope that these steps will bring clarity to how employers may effectively address workplace harassment while complying with all aspects of federal labor and employment law.