In a November 5, 2017, article, The New York Times harkened back to the 1977 Ms. magazine cover depicting sexual harassment on its cover. The point was to illustrate the fact that the 1977 Ms. cover is just as relevant today as it was then.
In 1986, more than 20 years after the enactment of the Civil Rights Act of 1964, the U.S. States Supreme Court in Meritor Savings Bank v. Vinson first recognized workplace sexual harassment as a form of unlawful sex discrimination. In 2017, more than 30 years after that landmark decision, claims of sexual harassment are grabbing headlines again, at a pace and intensity like never before. The fact is, since Vinson, the law prohibiting sexual harassment has not changed drastically. Nor has the underlying conduct that constitutes sex harassment. What has changed — or, rather, evolved — is the sheer number of those who speak out, the attention they are able to draw, and the cumulative power of their stories.
While the focus to date has been on celebrities, public figures, and business leaders, it is more likely than not that next up in this “speak out evolution” will be claims against and involving those who do not enjoy the spotlight and (until a story is launched about them) are outside the public eye. It is for this next phase of the speak out evolution that employers must be prepared.
This article briefly discusses the history of the speak out evolution, the Equal Employment Opportunity Commission’s position and recommendation, and the steps employers should consider taking now to ensure they have practices in place to prevent and address harassment in the workplace.
The Speak Out Evolution: 1975 to 2017
In 1975, a group of women at Cornell University first coined the phrase “sexual harassment.” It all started when Carmita Wood, a former employee of the University, filed a claim for unemployment benefits after she resigned from her job because of unwanted touching from her supervisor. Cornell challenged Wood’s claim for unemployment benefits, maintaining that she quit for “personal reasons.” In response, Wood, together with activists at the University, formed Working Women United. The group organized a campus rally to speak out about sexual harassment. It was the first rally of its kind and drew national media attention. At this Speak Out event, working women attended in person and shared their experiences of sexual harassment in the workplace, exposing the fact that the problem extended far beyond the university setting. The press coverage of the rally propelled many women to speak out against sexual harassment. This culminated more than 10 years later in Vinson. The Supreme Court made clear that workplace sexual harassment is a form of illegal employment discrimination prohibited by Title VII of the Civil Rights Act.
Five years later, in 1991, with perhaps the most visible sexual harassment “speak out” in American history, Anita Hill testified about Supreme Court nominee Clarence Thomas at his televised Senate confirmation hearing. Although Thomas denied Hill’s story and eventually joined the Supreme Court, Hill’s decision to speak out had immediate and lasting consequences. Her televised testimony undoubtedly reached far more people than the in-person Speak Out rally or even the Ms. magazine cover of 1977. Immediately after Hill’s testimony, for example, sexual-harassment complaints filed with the EEOC dramatically increased. See Carol Kleiman, Sex Harassment Claims On The Rise, Chicago Tribune, Mar. 7, 1992; EEOC Sexual Harassment Charge Statistics.
Now, following the headlines from the past few years on harassment and assault by public figures (e.g., Bill Cosby and Elliott Spitzer), sexual harassment at work is once again in the spotlight. In just the past few months, Harvey Weinstein was fired from his own company because of allegations of sexual harassment and other famous personalities and business leaders have been accused publicly on almost a daily basis.
The conduct that these celebrities and business leaders are alleged to have engaged in may differ at the margins in terms of degrees of salaciousness and egregiousness, but the stories are not markedly different from one another, or from those told by individuals in the past. Likewise, the law also remains simple, clear, and largely unchanged. What is different and new is that today’s stories beget more stories, and their volume is amplified by social media.
In October 2017, actor Alyssa Milano encouraged survivors of sexual harassment and assault to post publicly and adopt a #MeToo status. Her goal was to raise global awareness about sexual harassment. The #MeToo movement went viral. It embodies perhaps the most significant metamorphosis of the speak out evolution to date and is a harbinger of things to come.
Employers would be well-served to anticipate that this speak out evolution will continue. More and more claims of harassment, of all types, will be raised, and they are bound to extend far beyond Hollywood and Silicon Valley to other businesses, organizations, and individuals, whether or not they enjoy the spotlight. The time is now for employers to prepare.
EEOC’s Take: Problem is Not New and Training is Required
Recent EEOC statistics and publications demonstrate that what may seem to some as new is hardly new at all. From 2010 through 2016, the EEOC received more than 12,000 charges of sex-based harassment each and every year. Nearly one-third of the approximately 90,000 charges received by the EEOC in fiscal year 2015 included an allegation of workplace harassment.
The EEOC views workplace harassment as such a pervasive issue that in 2015 an EEOC task force launched an 18-month study. In 2016, the EEOC Select Task Force on the Study of Harassment in the Workplace released a roughly 100-page report detailing findings on harassment in the workplace. It concluded that “[t]hirty years after the U.S. Supreme Court held in the landmark case of Meritor Savings Bank v. Vinson that workplace harassment was an actionable form of discrimination prohibited by Title VII of the Civil Rights Act of 1964, we conclude that we have come a far way since that day, but sadly and too often still have far to go.”
The EEOC Task Force summarized its conclusions as follows:
- Workplace Harassment Remains a Persistent Problem
- Workplace Harassment Too Often Goes Unreported
- There Is a Compelling Business Case for Stopping and Preventing Harassment
- It Starts at the Top — Leadership and Accountability are Critical
- Training Must Change
- New and Different Approaches to Training Must Be Explored
- It’s On All of Us to Stop Workplace Harassment
The bulk of the EEOC’s recommendations for preventing harassment in the workplace focused on the need for effective workplace training. In furtherance of that recommendation, in October 2017, the EEOC announced that it would launch two new training programs for employers: Leading for Respect (for supervisors and up) and Respect in the Workplace (for all employees). The training programs will be conducted by EEOC Training Institute staff on-site at the employer’s location. The EEOC’s training follows its 2016 recommendation that employers should train employees on what they should do, rather than on what they should not do.
What Employers Should Do Now
With the increased focus on workplace harassment, and the likelihood that additional claims will be raised against additional employers, what should employers do today?
Employers should evaluate their practices to ensure they maintain and implement preventive and remedial measures that have been recommended by employment law practitioners, and agencies like the EEOC, for years. These recommendations include:
- Maintaining robust policies prohibiting all forms of harassment based on any protected class, including sex, and ensuring such policies are compliant with federal and applicable state law.
- Establishing and communicating a clear reporting mechanism, which requires employees to report workplace harassment and provides multiple avenues to bring such complaints.
- Establishing and communicating a strong policy prohibiting retaliation and holding managers accountable for upholding it.
- Training all employees (supervisors and non-supervisors) on discrimination, harassment, reporting, and retaliation, with a focus on what employees should do and not only on what they should not.
- Confirming the training program meets requirements in states (e.g., California, Maine, and Connecticut) where harassment training is mandated.
- Investigating all allegations of harassment quickly and thoroughly and taking prompt remedial action when necessary.
- Holding accountable all managers, not just human resources or legal departments, for abiding by and enforcing the organization’s policies and practices.
Now, more than ever, employers must communicate to all levels of their organizations that inappropriate conduct (whether it amounts to unlawful harassment or not) is more than likely to result in disciplinary action, up to and including termination of employment. This means that employers should examine closely their training strategy and ensure that they provide regular education to both supervisors and employees, using real examples, as well as strategies for when they witness or are subject to harassment at work. The training should emphasize that supervisors must understand how to handle and escalate harassment claims, be accountable for their actions, and take ownership for creating and maintaining a harassment-free workplace.
Moreover, human resources, legal, and employee relations professionals should be trained in conducting thorough and effective investigations and taking appropriate remedial action against those who perpetrate harassment and those who knowingly permit its occurrence. A failure to take these measures — and allowing a culture of harassment to continue — can have dire consequences, not the least of which are potentially crippling punitive damages awards and debilitating negative publicity.