Two years after it was created as part of a broad investigation into workplace harassment, a task force of the U.S. Equal Employment Opportunity Commission met yesterday to discuss how to improve the climate of American workplaces.
The Select Task Force on the Study of Harassment in the Workplace reconvened Monday to hear from expert witnesses on “Transforming #MeToo Into Harassment-Free Workplaces” at a meeting open to the public.
The task force, co-chaired in 2015 and 2016 by EEOC Commissioner Chai R. Feldblum and Commissioner and Acting Chair Victoria A. Lipnic, consisted of representatives of academia and social science; legal practitioners on both the plaintiff and defense sides; employer- and employee-advocacy groups; and organized labor. Co-Chairs Feldblum and Lipnic released a report based on the work of the task force in June 2016, which includes recommendations regarding leadership, accountability, policies and procedures, training and developing a sense of collective responsibility.
As a result of that report, the EEOC developed an innovative training program called Respectful Workplaces that has been used in over 200 training sessions attended by over 5,200 employees and supervisors in 18 states. Since the report was released, the EEOC has also conducted about 2,700 outreach events related to harassment, reaching approximately 300,000 individuals.
Lipnic said yesterday that the headline-making events of last fall, particularly the Harvey Weinstein saga, and the public’s demand for action prompted the reconvening of the task force.
“The EEOC will continue to lead the fight against workplace harassment and to promote solutions to prevent it,” she said.
Feldblum added, “Our challenge is to use this #MeToo moment well. We have a roadmap, given the work we have done at the EEOC. We have the attention and commitment of the range of different actors in society that we need. Together, we can channel that energy to create significant and sustainable change.”
Legal scholars and attorneys who represent workers and employers highlighted a range of issues raised in the wake of high-profile allegations of sexual harassment since October 2017 and the rise in the #MeToo and #TimesUp movements. These experts discussed non-disclosure and arbitration agreements and training mandates, and shared proposals for legal reform from state legislatures and industry groups, who have increasingly addressed sexual harassment in the workplace.
Elizabeth Tippett, a professor at the University of Oregon School of Law, provided an overview of relevant legal issues and noted the importance of also addressing other forms and aspects of harassment. “It would be a mistake for employers and state legislators to limit their response exclusively to sexual harassment,” Tippett said. “In doing so, they risk laying a foundation for the next crisis, whether it involves other forms of harassment, or discrimination and retaliation.”
Debra Katz, a partner with Katz, Marshall and Banks, said the “#MeToo movement forces society to see the gaps between the promises of our politicians and lawmakers and the realities of individuals, face to face in the workplace.” Katz outlined how Title VII and state laws have been thwarted for too long by evasions that the legal system itself has sanctioned. “#MeToo illustrates the immense cost of that failure,” Katz noted.
Kathleen McKenna, a partner at Proskauer Rose, who represents employers, testified that arbitration provides a neutral and confidential process to resolve individual harassment complaints for conduct that employers “invariably prohibit and work to guard against.” McKenna also explained that proposals to prohibit non-disclosure agreements are likely to be counterproductive, as they could lead to an increase in litigation rather than private resolution.
Suzanne Hultin with the National Conference of State Legislatures testified that over “125 pieces of legislation have been introduced this year in 32 states” to combat workplace harassment, and that many states are looking to go beyond federal regulations. She projected that proposals to address and prevent harassment would continue to be a priority for state legislatures this year and next.
A second panel presented innovative strategies that employers, unions and others have developed to prevent harassment in the workplace.
While the topic of sexual harassment has taken on a higher profile since last fall, Lipnic said the EEOC has not received an increase in sexual harassment reports so far this fiscal year, which began last fall just as harassment accusations against Harvey Weinstein were brought to light, according to the New York Times. In the 2017 fiscal year, the commission received more than 12,400 reports of sexual harassment.
“What I have heard a lot of is internally, employers have seen an uptick within their own internal processes, of people coming to HR complaining, that human resources has an uptick in investigations that they are conducting,” Lipnic said.
