Tuesday, March 21, 2017

EEOC offers sage advice on following checklists for harassment compliance

Last June, the EEOC issued a comprehensive, bi-partisan report on harassment in the workplace. The report’s stated purpose was to “reboot workplace harassment prevention efforts” by focusing on efforts employers can take “in designing effective anti-harassment policies; 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.”

One such tool the EEOC provided was a series of four checklist for employers to use to create an effective harassment prevention program.
  • Leadership and accountability.
  • Anti-harassment policies.
  • Harassment reporting systems and investigations.
  • Compliance training.

At last week’s SHRM Legislative Conference, EEOC Commissioner, and one of the co-chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace, Chai Feldblum, reiterated the importance and usefulness of these checklists. Because the EEOC feels so strongly about the utility of these lists for employers, I’m sharing them in full.

Checklist One: Leadership and Accountability

The first step for creating a holistic harassment prevention program is for the leadership of an organization to establish a culture of respect in which harassment is not tolerated. Check the box if the leadership of your organization has taken the following steps:
  • Leadership has allocated sufficient resources for a harassment prevention effort
  • Leadership has allocated sufficient staff time for a harassment prevention effort
  • Leadership has assessed harassment risk factors and has taken steps to minimize those risks
Based on the commitment of leadership, check the box if your organization has the following components in place:
  • A harassment prevention policy that is easy-to-understand and that is regularly communicated to all employees
  • A harassment reporting system that employees know about and is fully resourced and which accepts reports of harassment experienced and harassment observed
  • Imposition of discipline that is prompt, consistent, and proportionate to the severity of the harassment, if harassment is determined to have occurred
  • Accountability for mid-level managers and front-line supervisors to prevent and/or respond to workplace harassment
  • Regular compliance trainings for all employees so they can recognize prohibited forms of conduct and know how to use the reporting system
  • Regular compliance trainings for mid-level managers and front-line supervisors so they know how to prevent and/or respond to workplace harassment
Bonus points if you can check these boxes:
  • The organization conducts climate surveys on a regular basis to assess the extent to which harassment is experienced as a problem in the workplace
  • The organization has implemented metrics for harassment response and prevention in supervisory employees’ performance reviews
  • The organization conducts workplace civility training and bystander intervention training
  • The organization has partnered with researchers to evaluate the organization’s holistic workplace harassment prevention effort

Checklist Two: An Anti-Harassment Policy

An anti-harassment policy is a key component of a holistic harassment prevention effort. Check the box below if your anti-harassment policy contains the following elements:
  • An unequivocal statement that harassment based on any protected characteristic will not be tolerated
  • An easy-to-understand description of prohibited conduct, including examples
  • A description of a reporting system - available to employees who experience harassment as well as those who observe harassment - that provides multiple avenues to report, in a manner easily accessible to employees
  • A statement that the reporting system will provide a prompt, thorough, and impartial investigation
  • A statement that the identity of an individual who submits a report, a witness who provides information regarding a report, and the target of the complaint, will be kept confidential to the extent possible consistent with a thorough and impartial investigation
  • A statement that any information gathered as part of an investigation will be kept confidential to the extent possible consistent with a thorough and impartial investigation
  • An assurance that the employer will take immediate and proportionate corrective action if it determines that harassment has occurred
  • An assurance that an individual who submits a report (either of harassment experienced or observed) or a witness who provides information regarding a report will be protected from retaliation from co-workers and supervisors
  • A statement that any employee who retaliates against any individual who submits a report or provides information regarding a report will be disciplined appropriately
  • Is written in clear, simple words, in all languages commonly used by members of the workforce

Checklist Three: A Harassment Reporting System and Investigations

A reporting system that allows employees to file a report of harassment they have experienced or observed, and a process for undertaking investigations, are essential components of a holistic harassment prevention effort. Check the box below if your anti-harassment effort contains the following elements:
  • A fully-resourced reporting process that allows the organization to respond promptly and thoroughly to reports of harassment that have been experienced or observed
  • Employer representatives who take reports seriously
  • A supportive environment where individuals feel safe to report harassing behavior to management
  • Well-trained, objective, and neutral investigators
  • Timely responses and investigations
  • Investigators who document all steps taken from the point of first contact and who prepare a written report using guidelines to weigh credibility
  • An investigation that protects the privacy of individuals who file complaints or reports, individuals who provide information during the investigation, and the person(s) alleged to have engaged in harassment, to the greatest extent possible
  • Mechanisms to determine whether individuals who file reports or provide information during an investigation experience retribution, and authority to impose sanctions on those who engage in retaliation
  • During the pendency of an investigation, systems to ensure individuals alleged to have engaged in harassment are not “presumed guilty” and are not “punished” unless and until a complete investigation determines that harassment has occurred
  • A communication of the determination of the investigation to all parties and, where appropriate, a communication of the sanction imposed if harassment was found to have occurred

Checklist Four: Compliance Training

A holistic harassment prevention effort provides training to employees regarding an employer’s policy, reporting systems and investigations. Check the box if your organization’s compliance training is based on the following structural principles and includes the following content:

Structural Principles
  • Supported at the highest levels
  • Repeated and reinforced on a regular basis
  • Provided to all employees at every level of the organization
  • Conducted by qualified, live, and interactive trainers
  • If live training is not feasible, designed to include active engagement by participants
  • Routinely evaluated and modified as necessary
Content of Compliance Training for All Employees
  • Describes illegal harassment, and conduct that, if left unchecked, might rise to the level of illegal harassment
  • Includes examples that are tailored to the specific workplace and the specific workforce
  • Educates employees about their rights and responsibilities if they experience conduct that is not acceptable in the workplace
  • Describes, in simple terms, the process for reporting harassment that is experienced or observed
  • Explains the consequences of engaging in conduct unacceptable in the workplace
  • Content of Compliance Training for Managers and First-line Supervisors
  • Provides easy-to-understand and realistic methods for dealing with harassment that they observe, that is reported to them, or of which they have knowledge or information, including description of sanctions for failing to use such methods
  • Provides clear instructions on how to report harassing behavior up the chain of command, including description of sanctions for failing to report
  • Encourages managers and supervisors to practice “situational awareness” and assess the workforces within their responsibility for risk factors of harassment

As the EEOC reiterates in its report, the checklists are “meant to be a useful tool in thinking about and taking steps to prevent harassment in the workplace, and responding to harassment when it occurs. … Checking all of the boxes does not necessarily mean an employer is in legal compliance; conversely, the failure to check any particular box does not mean an employer is not in compliance.” While checking the boxes may not equal legal compliance, it provides a great tool to talk about legal compliance among HR, managers, supervisors, legal, and ownership/C-suite, and you cannot bring your organization into compliance without these important conversations.