By Cara Murray, Assistant Vice President, Alliant
In October 2017, allegations of rampant sexual abuses by Hollywood producer Harvey Weinstein finally broke through to major news sources after decades of rumors of his engaging in sexual harassment and assault. The high profile revelations to the general public gained traction in the public narrative, and the conversations started in the aftermath of Weinstein ballooned into the wider #MeToo movement – a hashtag showing the prevalence of sexual harassment and assault (experienced predominantly but not exclusively by women), especially in the workplace.
In addition to the general public, the US Equal Employment Opportunity Commission (EEOC) was paying careful attention to the #MeToo movement. The EEOC is the government entity responsible for enforcing federal laws against discrimination, including harassment, against job applicants or employees based on a protected class (race, color, national origin, religion, sex, sexual orientation, gender identity, pregnancy, age, disability or genetic information). Not surprisingly, this major public discourse on harassment was of interest to the EEOC, especially considering the EEOC had just launched their Respectful Workplaces training program, a program developed following the 2016 meeting of the EEOC’s Select Taskforce on the Study of Harassment in the Workforce.
On June 11th, 2018 the EEOC reconvened the Select Taskforce on the Study of Harassment in the Workforce in a meeting called “Transforming #MeToo into Harassment-Free Workplaces.” Commissioner Chai Feldblum, in her opening statements of the meeting, emphasized the national focus on sexual harassment and the opportunity the EEOC has to leverage that focus in furtherance of its mission.[i] Commissioner Feldblum made a point of emphasizing that the EEOC is seeking sustainable change in the workforce in decreasing all kinds of harassment, including but not limited to sexual harassment. In fiscal year 2017, harassment charges made up about 30% of the charges under all statutes enforced by the EEOC.[ii] Within that 30%, sexual harassment accounted for approximately 35% of charges, with racial harassment accounting for 27% of charges, and harassment on other grounds accounting for the remaining 38% of harassment charges.[iii] It is yet to be seen whether the Harvey Weinstein revelations will have an impact on the number or proportion of sexual harassment charges filed. Acting Chair Victoria Lipnic’s opening statement notes that the revelations came out at a time that coincided with the EEOC’s fiscal year (which begins in October and ends in September), and that there are typically delays in charge filing, so the EEOC cannot yet say if they will end up seeing more sexual harassment charges as a result of the #MeToo movement.[iv]
With a prominent place in public narrative, and with EEOC scrutiny at a bolstered high, harassment is an issue that companies should be carefully monitoring for, and attempting to prevent, in their workplaces. As well as continued development, implementation, and review of company policies and procedures against harassment in the workplace, it may also be beneficial for companies to review their Employment Practices Liability coverage in light of this EEOC focus. In particular, it is important to make sure the definition of Employment Practices Violation (or Employment Practices Wrongful Act) explicitly references harassment, and that such reference to harassment is not limited to sexual harassment.
In the wake of #MeToo, workplace harassment is high in public consciousness. The EEOC sees this public and media focus as an opportunity to effectively fulfill its role of enforcing federal laws against discrimination, including harassment. Companies should be on alert for harassment in their workplaces, because the general public and the EEOC are certainly paying attention.
[i] Opening Statement of Commissioner Chai R. Feldblum (2018) https://www.eeoc.gov/eeoc/task_force/harassment/feldblum.cfm
[ii] Derived from data found in the EEOC’s enforcement and litigation statistics. All Statutes https://www.eeoc.gov/eeoc/statistics/enforcement/all.cfm and All Charges Alleging Harassment https://www.eeoc.gov/eeoc/statistics/enforcement/all_harassment.cfm
[iii] Opening Statement of Acting Chair Victoria A. Lipnic (2018) https://www.eeoc.gov/eeoc/task_force/harassment/lipnic.cfm