EEOC Identifies “Promising Practices for Preventing Harassment”

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The Equal Employment Opportunity Commission has issued guidance to assist federal agencies in preventing and remedying harassment in the workplace – but specifically observed that “many of the practices identified may also be helpful to practitioners outside of the federal government.” Thus, private employers may find the following suggestions useful in terms of both preventing harassment and in defending against claims of harassment before the EEOC.

The EEOC organized its recommendations into four categories. We have selected some of the more useful or interesting recommendations as follows:

  • Leadership and Accountability. To demonstrate commitment and accountability, top management may undertake the following:
    • Periodically meet with those in charge of anti-harassment programs to discuss the state of the program
    • Periodically assess harassment risk factors and take appropriate preemptive steps to address and eliminate those factors
    • Conduct climate and exit surveys and review EEO complaint data to gauge the prevalence of harassment, retaliation and other unwelcome work-related conduct
    • Ensure that the response to harassment allegations is regularly evaluated and documented through an electronic tracking system
    • Acknowledge and reward employees, supervisors and managers for creating and maintaining a culture in which harassment is not tolerated
    • Incorporate performance measures on harassment prevention and response for supervisors and managers
  • Comprehensive and Effective Anti-Harassment Policy. In addition to the typical recommendations regarding a comprehensive and clear anti-harassment policy (e.g. using clear language, identifying the protected bases, providing multiple channels of complaint, prohibiting retaliation for reporting harassment, assuring a prompt and thorough investigation and appropriate corrective action, ensuring confidentiality to the extent possible), the EEOC suggests the following:
    • Explicitly assure that the policy applies to employees at all levels, as well as applicants
    • Discuss how the anti-harassment policy may be violated through work-related conduct on virtual platforms, including social media
    • Explain the employer’s duty to investigate and correct harassment even where the alleged victims wish otherwise
    • Require managers and supervisors to report harassment to the appropriate officials, and encourage employees to report harassment that they witness or of which they otherwise become aware
    • Make the policy available onsite and online in accessible formats (as needed)
    • Periodically review and update the policy
  • Effective and Accessible Anti-Harassment Program. The EEOC notes that policies should not exist in a vacuum, but must be part of a comprehensive program that ensures that all employees understand the anti-harassment procedures. In addition to setting up investigative and remedial procedures, such programs should include the following:
    • Allow for anonymous reporting through platforms like hotlines and websites
    • Ensure that the program has the necessary resources to respond promptly, thoroughly and effectively to complaints
    • Utilize a complaint tracking system to document reports of harassment
    • Educate employees and managers about the program
    • Consider interim actions to prevent the recurrence of harassing conduct during an investigation
    • Convey the outcome of the investigation to the alleged victim and harasser, where appropriate and consistent with relevant legal requirements
    • Use tailored training, letters of warning, and counseling to address unwelcome conduct before it becomes unlawful or serious enough for more significant discipline
  • Effective Anti-Harassment Training. As the EEOC notes, employees and management must be aware of what conduct is prohibited and how to prevent and correct it. The EEOC requires federal agency training, among other things, to: be provided periodically and be accessible to all employees; include plain language definitions of harassment and unwelcome conduct; provide examples of harassment based on specific protected bases; encourage employees to report unwelcome conduct before it rises to the level of unlawful harassment; and include details on how to report harassment. In addition, employers could also do the following:
    • Have senior leaders champion the training
    • Regularly revise and update it
    • Use trainers who are experts in the topic of harassment
    • Solicit feedback to improve effectiveness
    • Conduct training in smaller groups to foster more employee engagement and participation
    • Specifically direct content at non-supervisory employees, including by: having live, interactive discussions; providing real-world examples and scenarios tailored to the specific workplace; discussing harassment in remote environments; providing contact information for those responsible for addressing harassment questions, concerns, and complaints; providing informal training during team meetings, in advance of social gatherings, or in response to high-profile current events; and providing bystander training.
    • Provide separate training for managers and supervisors, in order to avoid chilling discussion among employees and to communicate additional responsibilities. Such training could include: reminding them that they must report harassment even if the employee does not wish to do so; reminding them that they should report inappropriate conduct before it becomes illegal harassment; reminding them to keep information about harassment allegations confidential; providing information on how to monitor for online harassment, including in a virtual work environment; and providing “trauma-informed training” for those who may receive or respond to allegations of harassment.