The Equal Employment Opportunity Commission (EEOC) released its annual financial report earlier this month and it was an eye-opener. Despite the pandemic, and a substantial portion of the American workforce being partially or fully confined to their homes, the EEOC reported “recoveries in line with historical levels”, recovering more than $484 million for victims of discrimination. Of that amount, $350 million was recovered for victims of employment discrimination and harassment through mediation, conciliation, and settlements. Additionally, the EEOC pursued 138 lawsuits resulting in $34 million in monetary damages and relief for claims including race discrimination and national origin harassment. These statistics don’t include the claims that were filed with and pursued by the Washington State Human Rights Commission for state-based claims of workplace wrongdoing.
With this in mind, it isn’t too soon for the employer to take a closer look at its Unlawful Harassment and Discrimination policy and ensure it is current (or that it exists at all!). A good policy should make clear that the employer will not tolerate harassment or discrimination in the workplace and provide specific examples of behaviors or actions that are problematic so that all parties are on notice of expectations. The policy should also contain a clear mechanism for reporting complaints or concerns and multiple channels for reporting. For example, an employee could report a concern to his/her supervisor, to Human Resources, or to the company President. With only a single channel for reporting, the employee may not feel comfortable coming forward with a concern– with multiple channels, the employee is more likely to confide in a trusted authority. Finally, the policy should have a clear anti-retaliation provision and a statement that violation of the employer’s policy or retaliatory activity will lead to disciplinary consequences.
Next, the employer should ensure that all employees and managers are familiar with and adequately trained on the policy – including a discussion on why it is essential to create and foster a workplace that is welcoming to all individuals. Often employees engage in behavior that they think is funny or welcoming, without the specific intention of harassing a co-worker or causing harm. It is essential, however, to understand that it is not the intent of the actor that matters, but how the person on the receiving end of the behavior reasonably interprets those actions. Training can help employees understand their obligations under the policy, what behaviors might be problematic, how to report concerns of harassment or discrimination, and what to expect after a complaint has been made to the employer.
With the EEOC increasing its enforcement efforts, employers are wise to put a policy review and training at the top of their 2022 “to do” list. If you would like assistance with your Unlawful Harassment and Discrimination policy contact Associated Industries at membercare@aiin.com. If you are interested in training for your employees and supervisors please contact our training manager, Allison Cubberley at training@aiin.com.
