EEOC Offers “Promising Practices” for Battling Workplace Harassment

The Equal Opportunity Employment Commission (EEOC) released what it describes as “Promising Practices for Preventing Harassment” with detailed recommendations in the categories of (1) Leadership and Accountability, (2) Comprehensive and Effective Anti-Harassment Policy, (3) Effective and Accessible Anti-Harassment Program and (4) Effective Anti-Harassment Training. 

While specifically aimed at anti-harassment efforts in federal agencies, the EEOC guidance expressly notes the practices are helpful for employers in the private sector. Some of the EEOC’s relevant recommendations applicable to private workplaces are as follows:

Leadership and Accountability

• • Issue and distribute to all employees and prominently post an annual anti-harassment policy statement signed by the agency head stating harassment will not be tolerated, the type of conduct that is prohibited, how to report harassment and the consequences of engaging in harassment and retaliation. The statement should be posted in an electronic and accessible form readily available to all employees (including those with disabilities).
  • Ensure that anti-harassment policies clearly set forth who is responsible for taking corrective action when allegations are substantiated and an individual is found to have engaged in conduct that violates the anti-harassment policy.
  • Acknowledge and reward employees, supervisors and managers for creating and maintaining a culture in which harassment is not tolerated.
  • Acknowledge and reward supervisors and managers for taking actions to prevent harassment.
  • Consider the extent to which agency personnel should be ineligible for promotions, performance awards or serving in a supervisory capacity when they violate an anti-harassment policy.
  • Incorporate performance measures on harassment prevention and response into the performance evaluations of any staff with supervisory or managerial responsibility.

Comprehensive and Effective Anti-Harassment Policy

The EEOC recommends that employers adopt and regularly disseminate to all employees an anti-harassment policy that includes the following:

• • Clear, easy to understand explanation of prohibited conduct that includes the definition of prohibited harassment.
  • Prohibition against harassment on all federal EEO protected bases, including race, color, sex (including sexual orientation, gender identity and pregnancy), national origin, religion, disability, age (40 years or older), genetic information (including family medical history) and retaliation.
  • Description of the employers’ anti-harassment program that includes multiple channels to report harassment, including to personnel outside the supervisory chain of command.
  • Protection for employees who engage in protected activity, such as making complaints of harassment or providing information related to such complaints.
  • Surety that the employer will take corrective action to prevent or address harassing conduct before it becomes unlawful.
  • Assurance that employer representatives will keep the identity of individuals who report harassment, alleged victims, witnesses, and alleged harassers (as well as information related to harassment investigations) confidential to the extent possible, consistent with legal obligations and the need to conduct a thorough and impartial investigation.
  • Prompt, thorough and impartial investigation of harassment allegations.
  • Immediate and appropriate corrective action when harassment is found to have occurred.
  • Explicit assurance that the policy applies to employees at every level, as well as to applicants.
  • Periodic reviews and updates as needed to incorporate legal developments, trends in harassment and changes in procedures.

Effective and Accessible Anti-Harassment Program

• • Allow for anonymous reporting of harassment through platforms, such as hotlines and websites. In providing multiple avenues and methods to report harassment beyond the supervisory chain-of-command, the program should also consider using portals, ombudspersons, human resources officials and anti-harassment program personnel.
  • Dispel the assumption that nothing can be done about anonymous harassment that occurs on the employer’s virtual network. Employers may be able to track down the identity of individuals who engage in harassment anonymously (for example, anonymously posting sexually or racially offensive comments or images during a virtual work meeting) on the employer’s network.
  • Ensure that reports of harassment or harassing conduct are well-documented through a complaint tracking system. This tracking system may be designed, for example, to record when the employer was notified of harassment allegations, the identity of the alleged harasser, details about the alleged harassment, the EEO bases involved, the dates of the alleged harassment or harassing conduct, when the investigation of allegations began and concluded, the identity of the investigator, whether harassment or harassing conduct was found to have occurred, any preventative or corrective action taken, and the identity of the person responsible for taking corrective action.
  • Conduct investigative interviews with the alleged victim, the alleged harasser and third parties who could reasonably be expected to have relevant information.
  • Ensure investigations are not conducted by individuals who have a conflict of interest or bias in the matter.
  • Convey the outcome of the investigation (i.e. whether the allegations were substantiated and/or the policy found to have been violated) to the alleged victim and the alleged harasser, as well as the preventative and corrective action taken, where appropriate and consistent with relevant legal requirements.^[43]

Effective Anti-Harassment Training

• • Is provided periodically to non-supervisory employees as well as supervisors and managers at all levels of the agency.
  • Is accessible to all employees, including through the provision of reasonable accommodations to individuals with disabilities.
  • Includes a clear, plain language definition of unlawful harassment and prohibited unwelcome conduct.
  • Encourages employees to report unwelcome conduct before it rises to the level of unlawful harassment or becomes severe or pervasive.
  • Includes details on how to report alleged harassment in accordance with the employer’s policies and procedures.

In addition, the EEOC advises that the effectiveness of anti-harassment training will be enhanced if it is:

• • Championed by senior management.
  • Regularly revised and updated as needed.
  • Tailored to the specific workforce and workplace and includes examples relevant to the specific workplace setting.
  • Conducted (virtually or in-person) in smaller groups that foster more employee engagement and participation. Followed by solicitation of feedback and input from participants to improve its effectiveness.

Please contact Mark Fijman or any member of the Phelps Labor and Employment team if you have questions or need advice or guidance.