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Strawberry Moon Quiz: EEOC’s Workplace Harassment Study

June 22, 2016

By Michael G. McClory

Monday was the Summer Solstice, which happens every June.  Monday also brought us the Strawberry Moon.  According to the Farmers’ Almanac, certain Native Americans kept track of the seasons by giving distinctive names to each recurring full moon.  June was strawberry harvesting season, hence the name Strawberry Moon.  Moreover, for the first time since 1967, and the last time until 2062, these two June events (Summer Solstice and the Strawberry Moon) occurred on the same day.
 
While you were getting ready for these monumental events, EEOC released a report related to the work of the Select Task Force on the Study of Harassment in the Workplace.  The agency created the Select Task Force last year for the purpose of “examining the myriad and complex issues associated with harassment in the workplace.”  While it is unclear when the full Select Task Force will release its report, EEOC announced that co-chairs Chai Feldblum and Victoria Lipnic (both EEOC Commissioners) have released their own non-consensus Report of Co-Chairs, along with an Executive Summary & Recommendations.
 
The Report of Co-Chairs is a must read, both for what it is and for what it is not.  Working in reverse, Commissioners Feldblum and Lipnic acknowledge that their work is not “a consensus report” and is not “focused on the legal issues concerning workplace harassment.”  Rather, they describe it as “a report focused on prevention of unwelcome conduct based on characteristics protected under our employment civil rights laws, even before such conduct might rise to the level of illegal harassment.”
 
The approach taken by Commissioners Feldblum and Lipnic is admirable and refreshing.  They do not lecture the reader.  Instead, informed by the substantial information gathering conducted by the Select Task Force, they attempt to take a candid look at “what we know (and do not know) about workplace harassment” and to then offer some “potential solutions for responding to, and preventing, workplace harassment.”
 
We believe you ought to read the full Report of Co-Chairs.  To entice you to do that, The Bullard Edge offers the following two-question quiz to give you a flavor of the report.  It is open book.  Good luck.
 
Question #1 (from the “What We Know” section):
True or false?  Workplace harassment training over the past 30 years has been effective in preventing, or at least reducing, workplace harassment.  Continued efforts along these same lines should be made going forward.
 
Question #2 (from the “Moving Forward” section):
Commissioners Feldblum and Lipnic state that harassment in the workplace “can sometimes feel like an intractable problem.”  Nevertheless, they believe there are things employers “can do to prevent harassment to a significant degree.”  They explain that prevention starts at the top with a commitment from leadership and must include organizational study, policy adoption and training, and objective accountability.  That being said, do Commissioners Feldblum and Lipnic offer any new ideas?
 
A second picture of the moon:
 

Answer to Question #1:
False.  To the contrary, Commissioners Feldblum and Lipnic state that the approaches to workplace harassment training developed over the past 30 years (since the US Supreme Court’s decision in Meritor Savings Bank v. Vinson) has not been effective in preventing workplace harassment.
 
“Much of the training done over the last 30 years has not worked as a prevention tool - it's been too focused on simply avoiding legal liability.  We believe effective training can reduce workplace harassment, and recognize that ineffective training can be unhelpful or even counterproductive.  However, even effective training cannot occur in a vacuum - it must be part of a holistic culture of non-harassment that starts at the top.  Similarly, one size does not fit all: Training is most effective when tailored to the specific workforce and workplace, and to different cohorts of employees.  Finally, when trained correctly, middle-managers and first-line supervisors in particular can be an employer's most valuable resource in preventing and stopping harassment.”
 
The Bullard Edge agrees that creative approaches to addressing workplace harassment are warranted.  Commissioners Feldblum and Lipnic acknowledge that workplace harassment training, as presently conceived, does not reduce workplace harassment.  While they are not specific regarding approaches that would be effective, Commissioners Feldblum and Lipnic do float several approaches they believe to be worthy of study, such as “bystander intervention training” and workplace “civility” training. 
 
The Bullard Edge urges employers to proceed with caution on civility training.  As we discussed just last month, the NLRB’s T-Mobile USA, Inc. decision faulted the employer for adopting a “professionalism in behavior” policy that, in the Board’s view, unlawfully restricted Section 7 rights.  The Report of Co-Chairs does not fault the NLRB for this, but it does urge interagency cooperation so that employers are not subject to conflicting requirements: “we recommend that EEOC and NLRB confer and consult in a good faith effort to determine what conflicts may exist, and as necessary, work together to harmonize the interplay of federal EEO laws and the NLRA.”
 
Answer to Question #2:
No.  Commissioners Feldblum and Lipnic do not offer any new ideas for the prevention of workplace harassment.  That is not intended as a criticism of their report.  There is no panacea for workplace harassment.  It is not a form of behavior that is limited to workplaces; similar behavior is found just as prevalently outside of the workplace.
 
The Bullard Edge wants to make three related observations.
 
First, rather than trying to dictate a solution that they admittedly do not have, Commissioners Feldblum and Lipnic function more like coaches giving a halftime chalk talk to a team (we are the team here).  They have flagged what has not been working in the first half (the years since Meritor), offered a blue print for the second half (approaches to improving and even changing what has been done to date), and encouraged the team to keep working.
 
Second, on the negative side, Commissioners Feldblum and Lipnic fail to acknowledge that the playing field has hidden potholes that cause damage to employers trying to comply.  Specifically, their report chastises employers for collectively being “too focused on simply avoiding legal liability.”  However, being focused on reducing legal liability makes sense.  The report informs us that in just the past year “EEOC alone recovered $164.5 million for workers alleging harassment” in the workplace.  That is a lot of money and it is being paid by employers; they are going to be concerned about avoiding that kind of liability.
 
Third, Commissioners Feldblum and Lipnic report being surprised to learn that workplace harassment training does not prevent workplace harassment.  They also are unable to point to policy or training strategies that will prevent workplace harassment.  This is not surprising.  Harassment is a societal problem.  Just as other societal problems are not eliminated with rules (e.g., criminal statutes prohibiting theft, battery, and arson), harassment in and out of the workplace is not going to be eliminated with a rule.  EEOC and other enforcement agencies should devote more of their efforts to working with employers to address harassment in the workplace (and less of their efforts to using the legal system as a cudgel to coerce monetary settlements).
 
 
Best regards,
 
The Bullard Edge
 
 

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About the Editor

Be informed, engaged and sometimes entertained

Michael G. McClory joined Bullard Law in 1997. He likes talking about employment law, debating it, proposing revisions to it and even complaining about it.  Perhaps so they could get some work done, his colleagues at Bullard Law suggested that he start a blog about employment law issues (broaden the conversation). And that is how this blog came to be. 

The blog is a forum for discussion about employment, labor and benefits law - new laws, proposed laws, case decisions and social events. Mike will share his views and invites you to respond.  Reader feedback is valuable and will be featured from time to time. Join the discussion with Mike and sign up for the Bullard Law Blog today.

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