Employment Law Reporter – March 2015

A New EEOC Task Force for Strategies to Prevent and Correct Harassment in the Workplace is Being Created: This is an Opportunity for Employers to Implement Proactive Measures Now that Will Save them Money Later.

According to Jenny R. Yang, the Chair of the U.S. Equal Employment Opportunity Commission (EEOC), workplace harassment is alleged in approximately 30 percent of all charges filed with the agency. The EEOC is taking this fact very seriously. To address this insidious issue, Yang announced that she is establishing a task force within the EEOC to convene experts from the employer community, workers’ advocates, human resources experts, academics, and others in a broader effort to identify effective strategies that work to prevent and remedy harassment in the workplace. “Through this task force we hope to better reach workers to ensure they know their rights and to better reach employers to promote best practices,” Yang said. “By identifying underlying problems in workplaces and industries where we see recurring patterns of harassment,” she added, “we are developing strategies that focus on targeted outreach and education as well as systemic enforcement to promote broader voluntary compliance.”

In other words, this will have impact on employers who turn a blind eye.

The serious impact that harassment can have on employees was brought poignantly to life by the testimony of Sean Ratliff, a trial attorney in the EEOC’s Denver field office who litigated a major harassment case against Michigan-based Dart Energy, an oil company. In the Dart case, the EEOC contended that the employer violated federal law against race and national origin harassment and retaliation when it created a hostile work environment for a group of black, Hispanic and Native American employees and then fired some of them because of their race/national origin and/or because they complained about the discrimination.

Specifically, an area manager and a truck supervisor used racist and ethnic slurs and made offensive racial and ethnic comments to black, Hispanic and Native American workers. The EEOC also alleged that minority workers were disciplined more harshly than their white counterparts and that black, Hispanic and Native American workers were given unfavorable job assignments. Employees who dared to complain internally were allegedly told to do their jobs and quit complaining. Complaints about the harassment to a supervisor were ignored. At times, the harassment took the form of dangerous “games” played on the minority workers, such as asking one Hispanic employee to put his hand down a hole where there was a drill was operating, or trying to shake an African American employee off of a two story rig. Within weeks of filing discrimination charges, several employees were disciplined, demoted, laid off, or terminated. These were horrific facts and resulted in a $1.2 million award for 17 employees and a settlement with the EEOC that included numerous training and posting requirements about equal employment and the right to work free from harassment.

Pleased with the success of its prosecution, an EEOC Director stated that “[r]etaliation in particular is a priority for the EEOC under the agency’s Strategic Enforcement Plan. As a law enforcement agency, we cannot fulfill our mission unless employees are free to file discrimination charges and complain about harassment without fear of losing their jobs.”

Workplace harassment can take many forms. In addition to race and national origin harassment, the National Women’s Law Center reported that one in four women faces harassment in the workplace. Many women are loath to report it, however, for fear of retaliation. However, with the proliferation of social media, employees are more informed of their rights and more likely to report their own harassment in solidarity with others similarly situated. The EEOC welcomes such invocation of employee rights and will aggressively prosecute employers who not only permit harassment, but also fail to prevent it in the first place and who retaliate against employees who report it.

This is welcome news for traditionally powerless employees. It is also a wake-up call to those employers who have failed as of now to heed the EEOC, and their California equivalent, the Department of Fair Employment and Housing, along with the relevant state and federal law. The only way to avoid the financial, reputational and productivity damage that a harassment and retaliation lawsuit can bring is through meaningful written policies that are actually communicated to the workforce and enforced, combined with periodic training at all levels of management to spot and stop unlawful harassment. We can help with both. Contact us before you become the EEOC’s next target.

 

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