Recognizing Workplace Harassment Beyond #MeToo

When most people hear about harassment at work it’s likely to be sexual harassment, especially in today’s #MeToo era. Sexual harassment is the type of harassment most reported by the mainstream news media, a journalism trend dating to the mid-1980s. That’s when the Supreme Court unanimously ruled in the case Meritor Savings Bank vs. Vinson that sexual harassment is an unlawful form of sex discrimination in the workplace.

However, sexual harassment is just one of multiple unlawful bases of harassment in the employment context.

It should be noted that the U.S. Equal Employment Opportunity Commission (EEOC), which enforces several federal anti-discrimination laws, has been cracking down lately on all forms of workplace harassment — including, but not limited to, sexual harassment.

Other forms of job harassment usually don’t get the same amount of national media attention, unless the case is particularly egregious — such as racial harassment involving a hangman’s noose, KKK graffiti or the N-word. Moreover, in today’s ubiquitous Digital Age, harassment can take place through electronic means like texting, email and other online communication. This includes popular social media, such as Facebook, Twitter and other sites. It should be noted that the U.S. Equal Employment Opportunity Commission (EEOC), which enforces several federal anti-discrimination laws, has been cracking down lately on all forms of workplace harassment — including, but not limited to, sexual harassment. The EEOC issues hundreds of press releases per year on litigation filings and settlements of cases with private employers. These cases cover all types of unlawful harassment under EEOC-enforced laws (see list below).

“Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive,” according to the EEOC. The EEOC also points out:

• “Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality.”
• “To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.”
• “Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.”

In addition to the pervasiveness of sexual harassment, other forms of unlawful workplace harassment can be based on the following:

• Race and color
• Age (40 and older)
• Disability
• Genetic Information
• National Origin (ethnicity)
• Religion
• Sex (including pregnancy)
• Sexual Orientation (LGBT)
• Gender Identity (transgender)

The term “harassment” in the modern workplace is a broad umbrella that can manifest in many forms under multiple laws for which not all employees are aware.

Types of Sexual Harassment

Even sexual harassment can take various forms. It’s not always a “he said, she said” scenario. Sexual harassment can be male on female (the most common type), male on male (an increasing trend), female on male (rare), or female on female (rare). The gender of the harasser and victim does not preclude legal compliance.

For example, a woman boss or CEO can sexually harass a male subordinate anywhere from the C-suite to the factory floor.

However, most sexual harassment of all kinds goes unreported, similar to all employment discrimination. What’s reported to the government is just a small part of a much larger picture. That’s why “Zero Tolerance” policies by employers must be more than empty rhetoric. It’s not enough for HR officials and mid-level managers to periodically highlight harassment in employee handbooks (if at all) and then place them on a shelf to gather dust.

Employment policies to prevent sexual harassment need to be revised and reiterated, as well as buttressed by annual or semi-annual training.

Complaints on the Rise

All types of harassment charges filed annually with the EEOC total about 28,000 on average over the past few years, according to agency data. The problem became so bad that an EEOC “Select Task Force on the Study of Harassment in the Workplace” was formed to conduct a comprehensive examination of the issue. Members included officials not only from the EEOC, but also academia, the legal community and stakeholder advocacy groups. The EEOC task force wrote the following in a detailed 2016 report (see Power Point presentation below):

• “Almost fully one-third of the approximately 90,000 charges received by EEOC in fiscal year 2015 included an allegation of workplace harassment.”
• “While there is robust data and academic literature on sex-based harassment, there is very limited data regarding harassment on other protected bases. More research is needed.”

“Workplace culture has the greatest impact on allowing harassment to flourish, or conversely, in preventing harassment.” — EEOC task force report

Knee-Jerk Reactions

The alarming truth is that EEOC statistics only represent a small percentage of all harassment cases. That’s because many employees are reluctant to speak out against their employers due to fear of retaliation, such as being demoted, fired or being subjected to other adversarial action by management. In fact, retaliation is now the most frequently filed complaint with the EEOC against private sector companies and the federal bureaucracy alike.

Too many managers have knee-jerk reactions by retaliating against employees (victims) who bravely stand up, speak out and exercise their statutory rights to be free from job discrimination and harassment.

This troublesome trend of retaliation is more evidence of a “blame the victim” mentality which continues to poison the work culture. As the EEOC wrote in the harassment report:

• “The least common response to harassment is to take some formal action — either to report the harassment internally or file a formal legal complaint.”
• “Roughly three out of four individuals who experienced harassment never even talked to a supervisor, manager, or union representative about the harassing conduct.”
• “Employees who experience harassment fail to report the harassing behavior or to file a complaint because they fear disbelief of their claim, inaction on their claim, blame, or social or professional retaliation.”

Victim blaming appears particularly prevalent regarding women who are sexually harassed by male bosses and then risk their careers by speaking truth to power. It’s unfortunate and immoral that too many harassment victims suffer in silence due to fear of retaliation by management and/or co-workers.

Meanwhile, the harasser may continue to violate the law unabated and target other employees if not initially stopped.

But on a positive note, the work culture regarding sexual harassment is slowly changing for the better thanks to the #MeToo movement and the #TimesUp initiative in the Hollywood entertainment industry.

More male co-workers (bystanders) need to support women subjected to sexually hostile work environments, as I wrote here in January 2018.

Anti-Harassment Policies

So how should employers incorporate strong anti-harassment policies into their broader efforts to prevent all forms of discrimination and foster a healthy work culture? According to the EEOC’s report:

• “The importance of leadership cannot be overstated — effective harassment prevention efforts, and workplace culture in which harassment is not tolerated, must start with and involve the highest level of management of the company.”
• “Training Must Change. 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.” — EEOC report

• “Training is most effective when tailored to the specific workforce and workplace, and to different cohorts of employees.”
• “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 EEOC also points to Bystander Intervention Training and Workplace Civility Training as potential remedies when correctly implemented — in addition to launching a national public awareness campaign to stop harassment, similar to the “It’s On Us” campaign to prevent sexual assault on college campuses. Additionally, EEOC’s task force report includes “detailed recommendations and a number of helpful tools to aid in designing effective anti-harassment policies” — such as:

• Developing training curricula.
• Implementing complaint, reporting, and investigation procedures.
• Creating an organizational culture in which harassment is not tolerated.
• Ensuring employees are held accountable; and
• Assessing and responding to workplace “risk factors” for harassment.

“When employers consider the costs of workplace harassment, they often focus on legal costs, and with good reason. Last year, EEOC alone recovered $164.5 million — and these direct costs are just the tip of the iceberg,” according to the agency’s report.

Final Thoughts

Executive management and leadership must be more mindful of the detrimental effects to the company culture caused by unfettered harassment of all kinds, including, but not limited to:

• Lower employee performance and productivity.
• Greater legal exposure/costs and bad PR.
• Less employee engagement and brand loyalty.
• Plummeting employee morale and job satisfaction.
• Increased employee absenteeism and healthcare costs.

Harassment in the workplace is like a cancer that will grow and spread if not quickly stamped out.

That’s why proactive prevention is the best medicine to stop harassment before it starts. But how? Through effective policy implementation, clear communication, as well as consistent training and education — as outlined in the EEOC task force report. It’s important to remember that all employees have legal rights protecting them from workplace harassment, whether it’s sexual, racial or otherwise.

And no CEO, manager or supervisor is ever above the law.