EEOC Releases Federal Work Force Report- EEOC

Yesterday, the EEOC released their Annual Report on the Federal Work Force for Fiscal Year (FY) 2009. According to the EEOC, the purpose of the report is to assess the current conditions of equal employment opportunity within the US federal workforce. The report looks at trends surrounding workforce composition and complaints of employment discrimination. The report for fiscal year 2009 concludes that complaints of discrimination- gender, race, religion, sex, etc., have increased. It has also been reported that the average time to conduct and investigation has increased.  The results of these findings can be used to help federal employers address issues of concern and provide guidance for implementing best in class equal employment opportunity (EEO) programs.

Heat’s Been Turned Up On Employer Compliance- HR.BLR.com

This article discusses the impact of an increased budget for the EEOC, as well as legislation enacted in the United States to expand compliance programs within federal agencies. Expanding the EEOC’s budget allows them to add investigators to their teams, improving the efficiency of investigations and closures of cases. As legislation grows to include greater protections for those facing retaliation, sexual harassment and gender identification discrimination, employers must make adjustments to corporate policies and training programs to ensure compliance with legislation amendments.

PETCO To Pay $145,000 For Failing To Accommodate Deaf Pet Groomer- EEOC Newsroom

PETCO has agreed to pay $145 000 plus additional relief to Nancy Buchner, a former employee who happens to be deaf. The company had outlined accommodations for the employee upon hire. Eventually, those promises were ignored, violating the Americans With Disabilities Act. PETCO is responsible for creating policies, procedures and training programs for their employees in order to prevent disability discrimination within the workplace. Employers need to see these cases as a lesson. Establishing reasonable accommodations doesn’t need to be costly, and it’s the responsibility of the employer to ensure accommodations are in place for employees who need assistance.

Everything from “locker room” style conversations to physical sexual advances can be considered workplace sexual harassment. Determining the boundaries of the “fine line” between what is and what isn’t considered sexual harassment can become a nightmare for HR departments and those responsible for creating workplace policies. To make things even more challenging, the stereotypical male-on-female sexual harassment is no longer a company’s only concern. As mentioned in our post “Sexual Harassment Against Men in the Workplace,” male-on-male and female-on-male sexual harassment is a growing concern in the workplace.

With more men speaking out than ever before, employers need to create policies that clearly define sexual harassment and provide training to all employees. Employers need to make it clear that any form of sexual harassment from either gender will be taken seriously, dealt with in the same manner and is strictly prohibited in the workplace.

Types of Harassment

The harassment men face in the workplace can present itself in forms different from those faced by women. Although men may face physical force from females or other males in the workplace, the most confusing area of male on male sexual harassment is related to “locker room humor.”

In the MSNNBC article, “Male Sexual Harassment is Not a Joke,” by Eve Tahmincioglu, she writes about some of the stereotypical responses given when men speak about sexual harassment, such as in the case below:

 ”Thomas, who works in academia but didn’t want his full name used, found himself in an office made up of mainly women who would routinely share and copy each other emailed jokes and emails about men. A few, he adds, ‘made fun of men’s unique anatomy, if you know what I mean.’ The behavior, he says, made him feel isolated. When he finally addressed the matter with the women in the office, ‘the women were stunned, generally with a ‘You’ve got to be kidding,’ kind of attitude. And they kept doing it’.”

Unfortunately, this response is all too frequent when it comes to men speaking up about situations that make them uncomfortable. Although this example isn’t exactly a form of sexual harassment, it depicts the very reality of some people’s opinions surrounding sexual harassment targeted at men.

According to the EEOC:

“Sexual conduct becomes unlawful only when it is unwelcome. The challenged conduct must be unwelcome in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive. When confronted with conflicting evidence as to welcomeness, the Commission looks at the record as a whole and at the totality of circumstances evaluating each situation on a case-by-case basis.”

This definition from the EEOC helps determine the barriers for “crossing the line” when it comes to actions that could potentially be considered sexual harassment. The fact that claims are handled on a case by case basis is extremely important, as the circumstances vary depending on the involved parties and their relationship to each other. The EEOC provides the public with guidance and examples of situations involving sexual harassment. An interesting example they bring forward, that I have slightly added to, is the fact that in some cases:

“The courts and the Commission have considered whether the complainant welcomed sexual conduct by acting in a sexually aggressive manner, using sexually-oriented language, or soliciting the sexual conduct. If the plaintiff regularly uses vulgar language, initiates sexually-oriented conversations with her (or his) co-workers, asks male (or female) employees about their marital sex lives and whether they engaged in extramarital affairs and discussed their own sexual encounters. In rejecting the plaintiff’s claim of ‘hostile environment’ harassment, the court found that any propositions or sexual remarks by co-workers were prompted by their own sexual aggressiveness and sexually- explicit conversations.”

Example from a Company Policy

It’s important that harassment towards both males and females is addressed in company policies. When preparing or updating policies, take into consideration the different forms of sexual harassment- as you can see from the examples above, sexual harassment spans much further than sexual advances and inappropriate gestures. Provide examples of each type of sexual harassment to help employees understand what is and isn’t acceptable behaviour.

Here is an example of an anti-harassment policy that can be found in the Tyco Guide to Ethical Conduct, available on the company’s corporate website:

“All of us have the right to work in a harassment-free environment. The company regards harassment as any behavior that may demean, intimidate or offend an individual. To promote a positive workplace, we must avoid the following behaviors:

• Unwelcome conduct – whether verbal, physical or visual, and whether committed in person or some other way (e.g., via e-mail) – that is based on a person’s protected status. Protected status includes, but is not limited to, race, color, religion, gender, age, national origin, disability, sexual orientation, genetic information and veteran status
• Racial, ethnic, religious, or sexual jokes
• Bullying, abusive language, physical aggression, intimidating or violent behavior, or disparaging comments
• Sexual advances or requests for sexual favors
• Any other actions that unreasonably disrupt or interfere with an employee’s work performance

Our Harassment-Free Workplace policy applies to all Tyco employees and contractors, plus anyone who does business with Tyco, including business partners, customers and suppliers. This policy also applies to work-related settings and activities outside of the workplace.”

The policy at Tyco makes it clear that anyone involved in Tyco operations is held accountable for upholding the policy created by the company. By doing this, Tyco had broadened their policy to address sexual harassment of all types and from both genders.

Sexual harassment in the workplace has continued to attract a lot of attention lately- and not for the reasons some may think. Sexual harassment towards males has been on the rise, and in the past year, a record number of sexual harassment reports have been made by men. This trend poses some new challenges for employers, as the types of harassment males face can differ from those faced by females. It’s important for employers to reevaluate company policies pertaining to sexual harassment to ensure they mitigate the risks surrounding any harassment that may be encountered by both male and female employees.

Some fail to respect the seriousness of male on male or female on male harassment in the workplace, however, it’s just as traumatic for men to deal with as it is for women.

Reasons for the Rise

There have been numerous ideas surrounding the reasons behind the increase in workplace sexual harassment towards males. According to the US Equal Employment Opportunity Commission (EEOC),  in 2009, 16% of the 12 696 sexual harassment incidents reported came from males. This is the largest number of sexual harassment related reports ever received by the EEOC from males. It remains unclear as to whether or not these numbers paint a clear picture of the reality of male sexual harassment in the workplace. Many feel that the number of cases reported to the EEOC is only a fraction of the actual number of incidents involving workplace sexual harassment towards males.  Others suggest that male sexual harassment may not be increasing in the workplace, claiming it’s simply a matter of males becoming comfortable in bringing these issues forward. Either way, many companies still lack the proper controls to deal with male on male or female on male sexual harassment in the workplace.

According to some experts, the recession is to blame for the increasing number of male sexual harassment claims. The HR Management article “Male Sexual Harassment Claims on the Rise,” reports:

“The recession has had more of a negative impact on men than women. From September 2008 to January 2010, 4.4 million American men lost their jobs, compared to just 2.3 million women, according to the Bureau of Labor Statistics figures. It has also been noted that the share of male sexual harassment claims rose more in the US, which had higher than average unemployment rates.

Greg Grant, an attorney with Shulman Rogers in Washington DC, believes that in the past, men would be more inclined to quit their job and find a new one if they were experiencing sexual harassment. Within the current economic climate, however, they are more likely to turn to the legal system. After all, points out Mr. Grant, these men still need to ‘pay the bills and support families’.”

Recommendations for Employers

Employers are responsible for providing their employees with a safe workplace, free of harassment- regardless of their gender. In order to address the issue of sexual harassment faced by males in the workplace, the article “When Men Are Harassed,” published by Workforce Management and written by Ron Chapman Jr., recommends that employers complete the following:

1.      Policy Revision- Policies must remain current to the risks faced by an organization. Many policies only provide examples of  male on female harassment. Elaborate on existing policies to include definitions and examples of male on male or female on male sexual harassment. This helps to communicate the message that all forms of sexual harassment are prohibited. The Workforce Management article also suggests that employers, “consider tightening restrictions on horseplay and other locker-room behavior in the workplace. Employees must understand the line between good-natured joking and unacceptable harassing behavior, as well as the consequences—sometimes severe—for crossing that line.”

2.      Employee Training- Employers must provide employees with training related to male sexual harassment, as many employees have a difficult time understanding what types of behaviours are considered as ”crossing the line”. The Workforce Management article suggests that “well-trained employees will not only avoid such conduct, but are also more likely to recognize and report it when they see it happening around them.”

3.      Reporting Systems- Employers must find new ways to encourage all employees to report instances involving sexual harassment. Both men and women tend to hesitate when it comes to reporting harassment, however, for men, reporting an act of sexual harassment can be difficult as they worry about the opinions of other men in the workplace. The Workforce Management article suggests that men “may be reluctant to come forward based on their fear of being labeled feminine, homosexual or oversensitive.” Whereas women usually tend to fear retaliation or physical violence for reporting sexual harassment.

Many Teens Face Sexual Harassment on the Job- MSNBC News

An MSNBC article reports that an EEOC attorney considers sexual harassment against teens in the workplace continues to be an epidemic. The article states that many teens feel too scared to report instances of sexual harassment, while many of them simply don’t understand what their rights are as employees. The article states, “the official EEOC numbers on teen sexual harassment charges are only about 107 as of May 18. That compares to 237 charges of sexual harassment against kids 19 and younger for all of 2009.”

ADECCO USA Settles EEOC Sexual Harassment and Retaliation Lawsuit- EEOC News

Sexual harassment and retaliation claims have continued to increase each year. ADECCO, along with Pittsburgh Plastics Manufacturing Inc., will pay a total of $91 500 to settle a sexual harassment and retaliation lawsuit with the EEOC. The female victims claimed a supervisor at the plant made unwelcome physical contact and sexually offensive remarks toward them. After complaints were made to ADECCO, the temp agency continued to send female employees to the plant to work under the same supervisor that was being complained about. ADECCO failed to protect the employees facing sexual harassment and later fired one of the females who complained about the sexual harassment she had been the victim of.

Investigator selection is a crucial component of any successful investigation. In smaller companies where employees frequently interact and know each other on a more personal level, investigator selection is a very difficult task. Depending on the size of an organization, companies may use third party investigators, while others use internal staff. There are pros and cons to both, as internal employees are fully versed in company policy and procedures, whereas third party investigators are able to maintain neutrality, as it’s unlikely they have any personal interests vested in the outcome of the investigation. When selecting investigators, focus making decisions to reduce personal bias and increase investigator neutrality.

What to Look For:

According to guidance offered by the EEOC through their “Enforcement Guidance: Vicarious Employer Responsibility for Unlawful Harassment by Supervisors,” they conclude investigators should be selected based on their ability to objectively gather and consider  relevant facts pertaining to the investigation. Investigators should be well trained in all areas covered by the investigation, including evidence preservation, interviewing, determining statement credibility and areas of employment law. The EEOC also suggests the “harasser” shouldn’t be in a supervisory position to the individual conducting the investigation, as this could potentially impact the conclusions drawn from the investigation. In the Mediation Blog post, “Neutral Investigations of Workplace Disputes,” author Roger Benson writes:

“Here are some critical things to look for when evaluating candidates:

• In-depth understanding of the law of the workplace and the alternatives to a negotiated settlement.
• Experience, skill and personality to quickly establish trust and confidence in the integrity of the investigation process.
• Insight to gather all of the facts necessary to develop a coherent, thorough and accurate assessment of the dispute.
• Expertise to provide recommendations for a practical, cost-effective and durable resolution.”

The Strategichrlawyer.com article by Diane M. Pfadenhauer, “Workplace Investigations: Rethinking the traditional paradigm and advocating the use of third party investigators,” provides a list of some additional skills to look for when selecting investigators:

1. Knowledge of the industry- If special skills or experience are required for an investigation to be conducted properly, select an investigator who meets the particular requirements. Familiarity with the industry the investigation occurrs in is ideal, as the investigator already has an idea of what questions to ask, the evidence to look for and can add value to the investigation with their experience.

2. Knowledge of the workplace- Understanding workplace policies makes it easier for an investigator to conduct a thorough investigation into workplace misconduct. Knowledge of company operations and culture contribute to a stronger understanding of why company policies are designed the way they are.

3. An understanding of the legal process- Knowledge of the litigation process and laws governing companies in various industries increases the effectiveness of an investigation. This is particularly important in planning the investigation and anticipating where to locate evidence, resulting in a complete investigation.

4. Knowledge of the subject matter in question- When selecting an investigator, consider their area of expertise. If the investigation involves accounting or finance, have someone who is an expert in that field carry out the investigation. They will be better at understanding the misconduct and will know what questions to ask and evidence to look for.

5. Ensure attorney client privilege is preserved- During the planning stages of the investigation, determine if outside counsel will be used. If so, make it very clear who the counsel represents.

The Importance of Neutrality

When it comes to deciding between using internal or external investigators, there are many conflicting views as to which group properly maintains neutrality throughout the investigation. There is no right or wrong answer. Organizations need to evaluate and determine which source best suits their investigative needs. In Benson’s blog post, “Neutral Investigations of Workplace Disputes,” he discusses neutrality when using a third party investigator:

“People are more likely to cooperate and offer candid information if they see the investigator as someone interested in the truth and without a hidden agenda or pre-conceived ideas. They also see a neutral investigator as an indication of the employer’s good faith commitment to conducting a legitimate investigation.

In contrast to Benson’s opinion, others feel an investigator from within earns the trust of the employees involved in the investigation, as the investigator is a familiar face. Some employees are more likely to open up to someone they know and feel comfortable talking to, contributing to the success of the investigation. Internal investigators are already familiar with the culture, policies, and laws governing the organization, reducing the time spend educating an external investigator on these matters.  The decision to use internal or external investigators depends on a variety of factors, including the issue under investigation, the employees involved, corporate culture, company size and skill sets of internal employees.

Successful investigations contribute positively to corporate reputations. On their corporate website, PricewaterhouseCoopers provides advice for selecting an internal investigator, stating:

“The company needs to ensure investigators are fully independent in forming their opinion. The measures taken to guarantee their independence must be explicitly documented. Given the complexity of most investigations, we recommend seeking expert advice from the very beginning of the process. We advise you to select parties not only with extensive experience and a wide range of applicable skills, but also with an impeccable reputation: corporate image is often a crucial factor in these investigations.”

Last week the United States Department of Labor (DOL) launched the Disability Nondiscrimination Law Advisor tool. The tool has been developed to help employers determine which federal disability nondiscrimination laws are applicable to their organization. Understanding an employer’s responsibilities under these laws assists companies in establishing corporate policies that refrain from discriminating against qualified job candidates who have disabilities.

In a DOL press release regarding the Disability Nondiscrimination Law Advisor tool, Kathleen Martinez, Assistant Secretary of Labor for Disability Employment Policy, said “today, we made it easier for employers of all sizes to access the talents of the 36 million Americans with disabilities.”

The Disability Nondiscrimination Law Advisor tool is easy to navigate. This tool is a great resource to consult during policy development and internal investigations. After answering a few simple “yes” or “no” questions related to one’s company and selecting the state in which the company operates, a results page is generated containing the laws applicable to the company. The results page also lists links to other sources of information related to hiring and employing individuals with disabilities.  Compiling all of the nondiscrimination laws into a single resource reduces the time spent searching for information.

The announcement of the Disability Nondiscrimination Law Advisor in the DOL press release  states:

“Employees, job applicants, applicants for/or participants in programs that receive federal financial assistance, and individuals receiving services from public entities may also find this Advisor helpful to learn more about their rights under these federal disability nondiscrimination laws.”

The US DOL stated the laws addressed by the Disability Nondiscrimination Law Advisor include:

Titles I and II of the Americans with Disabilities Act of 1990

Section 188 of the Workforce Investment Act of 1998

Section 504 of the Rehabilitation Act of 1973, as amended (as it pertains to federal financial assistance)

Section 503 of the Rehabilitation Act of 1973, as amended

The Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended

The US DOL has also compiled a list of the laws not included in the Disability Nondiscrimination Law Advisor:

Title III of the Americans with Disabilities Act, which applies to places of public accommodation, commercial facilities, and examinations and courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade purposes. Information regarding Title III and its requirements can be found on the Department of Justice’s ADA Web site.

Workers’ compensation laws. Information regarding federal workers’ compensation laws can be found on the U.S. Department of Labor’s (DOL) Office of Workers’ Compensation Programs (OWCP) Web site.

State and local disability nondiscrimination laws. State and local laws may have different and/or additional requirements from the federal laws covered by this Advisor. You are encouraged to check the pertinent State and local laws applicable to your specific situation.

Federal Government employees in the US will have to seek advice from sources such as the EEOC and the Office of Personnel Management, as the acts specific to these employees are not included in the DOL tool.

A report by WorkLife Law provides great insight into the current state of Family Responsibilities Discrimination litigation. The report states that there is a “400% increase in the number of FRD cases filed in the past decade and an average verdict of more than $500,000. Employees prevail in about half of the cases – significantly more frequently than in other types of employment cases.”

As an executive or member of the HR team, you understand the negative impact that these incidents have on your workplace. These are important issues that need to be corrected in many work environments, as these cases are getting the attention of media and further enforcement established by the EEOC.

The WorkLife Law Deputy Director states that “laws are broken when supervisors make assumptions about the value of employees based on their family caregiving responsibilities and then take negative personnel actions, regardless of the employees’ actual performance.” Employers have the ability to protect themselves against these lawsuits.

Through establishing effective and easy to use prevention programs- including the training of supervisors so that they have the ability to recognize these types of assumptions and remove these stereotypes from the workplace, employers will be better equipped to handle changes in the lives of their employees.

Caregivers: Not a Protected Class

One of the most confusing areas surrounding FRD claims is that caregivers are not a protected class under the law. Many of the complaints filed against a company regarding family related discrimination are filed under:

• U.S. Department of Labor’s Family and Medical Leave Act
• Age and sexual discrimination- whether a male or female is taking care of young children or elderly parents, if they face any negative backlash in the workplace for these actions, they are facing discrimination for being tied to a person with a disability, an aging citizen or being a parent.
• Pregnancy Discrimination Act

HR Implications

The EEOC report “Employer Best Practices for Workers With Caregiving Responsibilities” outlines some of the benefits that companies experience when they properly handle cases where employees are also caregivers:

“Employers adopting flexible workplace policies that help employees achieve a satisfactory work-life balance may experience decreased complaints of unlawful discrimination, and may also benefit their workers, their customer base, and their bottom line. Numerous studies have found that flexible workplace policies enhance employee productivity, reduce absenteeism, reduce costs and appear to positively affect profits. They also aid recruitment and retention efforts, allowing employers to retain a talented, knowledgeable workforce and save the money and time that would otherwise have been spent recruiting, interviewing, selecting and training new employees.”

Avoiding stereotypes regarding caregiving employees should be a goal established by all levels of management within every company- chances are, if an employee was a high level performer before they gave birth, they will continue to be a high level performer upon their return to work.

Employer Best Practices

The EEOC has established a list of suggestions that human resources and managers should integrate into workplace policies in order to fight the stereotype of caregiving employees and reduce the number of FRD claims that employees are making. These types of cases are becoming frequent and the price tag tied to them is significantly growing. In 2004 in California, an employee was awarded $5 224 273 because she was laid off for being pregnant.  Many other cases that are brought public are also being awarded figures in the hundreds of thousands of dollars. Businesses today cannot afford to be tangled in these types of litigations, therefore, you must establish a workplace culture that embraces those who are caregivers for members of their family.

The suggested best practices as outlined by the EEOC and summarized on the WorkLife Law Blog include:

• Training managers about laws that protect caregivers
• Developing and enforcing a policy that states the employer will not discriminate against employees based on their care giving obligations
• Ensuring managers comply with the company’s work/life policies
• Responding effectively to complaints of caregiver discrimination
• Protecting employees who complain of discrimination from retaliation
• Reviewing existing personnel policies to ensure they do not disadvantage caregivers
• Making overtime as family-friendly as possible
• Reassigning job duties that employees are unable to perform because of pregnancy or other care giving responsibilities
• Providing reasonable personal or sick leave to allow care giving
• Developing the potential of all employees, including caregivers
• Providing support and resources to assist employees with caregiving