#MeToo@Work: What We Now Know about Workplace Harassment - and How to Stop It

January 4, 2018

This is the first in a series of articles from Kurker Paget LLC on best employment practices for addressing workplace harassment. 

Last year, before Harvey Weinstein became a household name and reports of harassment on the part of "superstars" began spreading like California wildfire, the EEOC issued a prescient, 88-page report on sexual harassment in the workplace. In its report, the Task Force set out to answer a single question: Why, 30 years after the Supreme Court recognized that sexual harassment constitutes unlawful gender discrimination, and despite the proliferation of HR training and compliance programs, does harassment remain so pervasive in the American workplace? Although the Report received relatively little public attention at the time, it is now clear that employers must do more to understand workplace harassment and to assess whether they are taking the right steps to prevent it. The EEOC's findings offer an invaluable starting point.

Among the Task Force's findings are some surprising facts:

  • Nearly one third of the 90,000 complaints filed at the EEOC in 2015 involved allegations of unlawful harassment (including harassment based on other characteristics, such as race), and nearly one half of those involved sexual harassment. 

  • 3 out of 4 women who believe they have been harassed at work do not report it to anyone in the workplace; even fewer file formal complaints.

  • Sexual harassment training, standing alone, has not been shown to effectively reduce the incidence of harassment in the workplace.

Organizational Risk Factors for Workplace Harassment

In its report, the Task Force identified certain "risk factors" that, when present in a workplace, increase the likelihood of harassment:

  • Homogenous workforces lacking in diversity.

  • Workplaces where a minority of workers do not conform to predominant social workplace norms.

  • Language differences in the workplace that limit communication across groups.

  • Coarsened social discourse outside the workplace.

  • Workforces comprised of younger workers (who are more often in the role of both victim and victimizer).

  • Workplaces with high value, "Superstar" employees.

  • Significant power disparities between different employee groups.

  • Businesses that rely on customer service and satisfaction, which can increase the pressure on workers to tolerate inappropriate behavior so as not to risk alienating a customer.

  • Workers engaged in monotonous or low intensity tasks that generate boredom and frustration.

  • Workplaces that tolerate alcohol consumption.

  • Physically isolated workspaces.

  • Decentralized work locations lacking regular managerial supervision.

Although an organization may not be able to control or change all of these risk factors, understanding how they contribute to a culture of harassment can help employers focus their prevention efforts.

The Problem of "Superstar Harassers"

The EEOC's Report devotes particular attention to "Superstar Harassers", a type now familiar to the American public. The Superstar Harasser presents a special problem for employers, who are more likely to tolerate inappropriate or abusive behavior on the part of the Superstar, perhaps believing that the person's productivity or economic value outweighs the cost of complaints against them. Employees are even less likely to report harassment on the part of Superstars, who tend to wield power within the organization. Some research has shown, however, that the overall economic cost of tolerating "toxic workers" significantly outweighs the monetary benefit derived from the Superstar.

And although recent national news has made it clear that tolerating Superstar Harassers can inflict significant reputational harm on an employer's organization, addressing the problem can be nettlesome, especially when the Superstar is entrenched in an organization's management, as is often the case.

A Roadmap to Reducing Workplace Harassment

The EEOC's report stresses one finding above all others: To effectively prevent and address workplace harassment, employers must act holistically and decisively at every level of the organization. What does this mean? We offer a summary below, and will explore these areas in greater depth in subsequent articles.

Leadership and Accountability

We now know that employers cannot curb harassment simply by having a written policy and conducting occasional, What-Not-To-Do trainings. As the EEOC observed, effective prevention "starts at the top."  The organization's very top leadership must demonstrate an unwavering commitment to a diverse, inclusive, and respectful workplace in which harassment is unacceptable. 

This commitment must be coupled with systems that hold employees accountable, and that "ensure that those who engage in harassment are held responsible in a meaningful, appropriate, and proportional manner." Likewise, the EEOC suggests that those responsible for carrying out various aspects of anti-harassment policies are held accountable when they fail to do so (and rewarded when they do).

Workplace Harassment Training Reboot

The time has come for employers to consider revamping their workplace harassment training, especially in light of evidence that conventional harassment training, standing alone, does not reduce the occurrence of harassment. 

The EEOC urges employers not to limit workplace training to "legal compliance" - understanding what conduct is unlawful.  Rather, employers should expand on this model, to include training in workplace civility and social skills. Such trainings offer participants a model for how to behave, rather than a lecture on how not to behave, providing a more positive and proactive model for workplace interactions. The EEOC also encourages training in bystander intervention, a tool that has begun to attract attention as a mechanism for preventing harassment.

Rethinking Reporting and Response Systems

The EEOC recommends that employers adopt multi-faceted reporting systems that offer employees a range of options for reporting and addressing inappropriate behavior. Such options should allow for a range of responses, depending on the conduct and circumstances, rather than limiting employees to a single reporting mechanism and one-size-fits-all investigatory response. 

Investigating Harassment

Likewise, employers must ensure that their investigations into reports of harassment are prompt, fair and thorough, and that those who conduct investigations are trained to do so. We will offer further guidance on the key aspects of investigating harassment later in this series.