EEOC reports record number of discrimination filings for FY 2011

The U.S. Equal Employment Opportunity Commission (EEOC) recently released fiscal year 2011 statistics, compiled in its annual Performance and Accountability Report (PAR). The EEOC handled a record 99,947 discrimination charges in fiscal year 2011 (ending September 30) -- the highest number in the agency's 46-year history. The EEOC also recovered more than $364.6 million in monetary benefits for victims of workplace discrimination -- again, the highest level in the agency's history. The fiscal year ended with 78,136 pending charges, a 10 percent decrease from FY 2010 (and the first such reduction since 2002).

Race charges were the most common claims filed in 2011 (36%), followed by sex (29%), disability (25%) and then age (23%). National origin, religion and Equal Pay Act claims all registered less than 5% of all charges filed.

“I am proud of the work of our employees and believe this demonstrates what can be achieved when we are given resources to enforce the nation’s laws prohibiting employment discrimination,” said EEOC Chair Jacqueline A. Berrien.

The major takeaway in all this? Be especially diligent about training your employees and managers on proper, non-discriminatory behavior and document, document, document. The bad economy may be driving the bump in discriminatory charges. And unless the economy picks up in 2012, this trend may continue.

EEOC reports record number of discrimination filings for FY 2011

'Tis the season for sexual harassment training

In just a few festive hours, an employee can do or say something at the annual holiday party (see previous post) that could lead to a sexual harassment claim – and a legal mess that lasts long after the tinsel comes down.

To keep the good cheer in check and protect your company from a harassment claim:

Remind employees of your no-harassment policy. Redistribute the policy before the holiday party, and emphasize that all guidelines will be in full force, even if the party occurs off-site or after work hours. Be certain your employees understand that harassment can be verbal, physical or visual. The areas that could get someone in trouble at a holiday event are most likely verbal and physical harassment, including inappropriate comments, jokes, unwelcome physical contact, invading one’s physical space and offensive gestures.

Make sure all employees and supervisors have received sexual harassment training. If you haven’t conducted sexual harassment training in the past year, consider organizing a one- to two-hour session that covers definitions and examples of harassment, an overview of employee rights, and clear communication that the company will not tolerate harassment of any kind.

A few last tips …

Since you could be found liable for injuries caused by a drunken employee, consider not serving alcohol at all – or taking steps to limit consumption, such as providing a limited number of drink tickets for each employee, closing the bar well before the party ends or offering perks to employees who volunteer to be designated drivers.

Also, stress to supervisors the importance of setting a professional example, and that you’re counting on them to keep an eye on any employee antics that could get out of hand.

'Tis the season for sexual harassment training

Lessons learned from the recent HP sexual harassment scandal

In the aftermath of sensational headlines and Hewlett-Packard CEO Mark Hurd’s sudden resignation, one thing is painfully clear: sexual harassment covers more than just employees.

In the HP case, Hurd’s sexual harassment charge came not from a subordinate or other HP employee but from an outside contractor. This highlights the extended liability companies face when it comes to sexual harassment.

Going beyond “regular” employees

Companies are responsible for protecting a variety of people in addition to employees. This can include job applicants, vendors, temp workers and, of course, contractors. As the recent HP case shows, employees’ actions related to these non-employees can result in claims of sexual harassment.

That works both ways. Employees are also extended protection from harassment by non-employees. A female bus driver brought a case against her employer because she was assaulted by one of her developmentally disabled passengers. She won, in part, because the transportation company took no action even after the driver filed reports about the passenger exposing himself.
The current reality is that harassment of or by non-employees must be treated the same as that of standard employees.

The best offense is a good defense

Like many unwanted situations, the key to handling harassment is prevention. You can accomplish that by taking a few essential steps:

Develop a sexual harassment policy
Clearly define sexual harassment and the fact that your company does not tolerate it. Decide on disciplinary action (including termination) and explain it. Be sure to set up and include a specific procedure for reporting and investigating harassment.

Train your employees (and non-employees)
Administer annual training sessions on sexual harassment. Explain what it is, how to avoid it and what to do when and if it occurs.

Train your managers and supervisors
Conduct these sessions annually for managers and supervisors, too, but separately from employee training. It’s important that they understand the procedure for handling complaints, as well as their role in properly and speedily responding to complaints.

Know the climate
Consider talking to managers and employees (informally, of course) about the tone and mood of the work environment. Ask for their thoughts and feelings – and really listen. And be certain to keep an eye open for pictures, notes, printed e-mails, etc. that may be considered offensive.

Investigate all complaints thoroughly
By taking all sexual harassment complaints seriously, you’re more likely to minimize disruption in the workplace. An immediate investigation helps you get to the heart of the matter and communicates that your company doesn’t tolerate these actions.

Lessons learned from the recent HP sexual harassment scandal

Same-sex harassment complaints growing

Dillard’s, Inc. will pay $110,000 and provide significant remedial relief for a same-sex harassment suit in Florida, according to an announcement from the Equal Employment Opportunity Commission (EEOC) last week.

The EEOC claimed that Dillard’s violated Title VII of the Civil Rights Act by permitting a sexually hostile work environment for men at its Fashion Square Mall store in Orlando, Fla. The EEOC charged that a male sales associate and a young dockworker were verbally and sexually harassed by a male supervisor.

The workers accused their supervisor of exposing himself in front of them, making sexual propositions, and making sexually explicit and derogatory comments. According to the EEOC, Dillard’s store managers ignored complaints made by the workers about the harasser.

Dillard’s argued that the store wasn’t liable because the supervisor had been fired and had an anti-harassment policy in place. The court rejected that argument and “found that Dillard's anti-harassment policy could not absolve it of liability if the policy hadn’t been effectively implemented.” (Business Management Daily)

“The EEOC will hold corporate America accountable for failing to prevent and correct employment discrimination,” said Commission Acting Chairman Stuart J. Ishimaru. “Sexual harassment charge filings by men have trended upward over the past decade. Employers must be more vigilant in ensuring that men are not subjected to sexually hostile workplaces.”

In addition to paying $110,000 to the two male victims, the Dillard’s Fashion Square Mall store must:

• distribute policies to the workforce on preventing sexual harassment and retaliation;
• conduct sexual harassment and anti-discrimination training for all employees;
• train employees who are responsible for investigating sexual harassment complaints;
• submit to monitoring throughout the decree’s three-year duration;
• and post a notice about the resolution of the case.

“Employers must diligently enforce policies to prevent sexual harassment and ensure that managers take same-sex harassment complaints seriously. It is vital to protect both men and women from workplace harassment,” said EEOC Miami Regional Attorney Nora Curtin.

The number of sexual harassment charges filed with the EEOC are up 11% from last year and at the highest rate since 2002. Sexual harassment charges filed by men make up 16% of total charges, a figure that once stood at 12% in the late 1990s.

Sexual harassment is sexual harassment no matter if it’s male-on-female, male-on-male or female-on-female. Even if the harassment doesn’t look exactly like what was taught in the training video, it should still be handled with the same sensitivity and diligence that would be given in any “normal” situation.

According to Mindy Chapman, Esq., of Mindy Chapman & Associates, in a recent Business Management Daily article, companies can learn three major lessons from this case:

1. Train “it.” Anyone designated in your anti-harassment policy’s reporting procedures needs to know they could be tagged “it” with a complaint. Train them so they know “it.”


2. Script “it.” The store manager should have responded by saying, “Thank you for letting me know. You are important to us at Dillard’s. I will help you immediately.” Then he should have, in the next breath, contacted the district manager.


3. Stop “it.” The manager had an obligation that if he saw “it,” heard “it,” or heard about “it,” he should have stopped “it,” but never ignored “it."

Same-sex harassment complaints growing

Use sexual harassment training as prevention, not punishment

Cracker Barrel Old Country Stores, Inc. will pay $255,000 to settle a sexual harassment and retaliation lawsuit filed by the U.S. Equal Opportunity Commission (EEOC), the agency announced Thursday April, 9.

Cracker Barrel, based out of Lebanon, Tenn., had allegedly turned a blind eye to repeated sexual harassment incidents at its Cedar Bluff, Tenn. store location. The EEOC lawsuit claims that male managers and other employees made repeated and unwanted sexual jokes and lewd remarks to women.

When the women complained about the sexual harassment to the managers and made calls to Cracker Barrel’s compliant line, the company failed to take any action to stop the harassment.

The company failed to take any action to stop the harassment, even after the women complained about it to managers and to the company’s complaint line, according to the lawsuit.

Under the terms of the settlement, Cracker Barrel must: 


• Modify its policies and practices regarding the investigation of sexual harassment claims,
• Conduct annual training on sexual harassment and retaliation for all employees for a period of three years
• Maintain and report complaints of harassment received for three years
• Post the company’s sexual harassment policy and a statement it will investigate anonymous claims of sexual harassment.

Instead of having sexual harassment training be a punishment for your organization, make it a part of your company culture. Empower every employee with the promise that every sexual harassment claim will be taken seriously and that each case will be fully investigated.

Incorporate sexual harassment training into an overall harassment prevention program at your organization to ensure every employee, including managers and supervisors, know how to recognize and prevent harassing behavior.

Unfortunately, many of your employees may be engaging in or condoning sexual harassment without even realizing it. G.Neil’s Harassment-Free Workplace -- Take Control training program helps employees understand how they can “pause, fast forward, rewind and stop” to take responsibility for their own actions.

Use sexual harassment training as prevention, not punishment

Lacking anti-harassment policy, New Jersey employer liable

In a recent court decision, New Jersey employers may be held liable for negligence for an employee’s sexual harassment by a coworker if the business lacks effective anti-harassment policies, even if the employer was unaware of the situation.

The decision in Cerdeira v. Martindale-Hubbell is the first of it’s kind in New Jersey. The court’s ruling makes it fully clear that New Jersey employers can be liable for coworker sexual harassment in “the absence of an anti-harassment policy with effective preventative mechanisms.”

The state’s highest court advises employers wanting to avoid sexual harassment to put five elements in place:

1. An anti-harassment policy
2. A complaint structure that allows for formal and informal complaint procedures.
3. Training that is offered to all members of the organization, but mandatory for supervisors and managers.
4. Effective monitoring mechanisms, to determine whether the complaint structure is trusted.
5. “An unequivocal commitment from the top that is not just in words but backed up by consistent practice.”

In 2007 there were 12,510 reported cases of sexual harassment resulting in almost $50 million in monetary benefits for charging parties (not including monetary benefits obtained through litigation), according to the U.S. Equal Employment Opportunity Commission.

“Prevention is the best tool to eliminate sexual harassment in the workplace,” according to the EEOC.

Visit G.Neil’s HR Library for more information on how to handle workplace diversity, discrimination and harassment.

Lacking anti-harassment policy, New Jersey employer liable

‘Encouraged’ nudity grounds for harassment?

On August 27th, employees at Lush stores across the country and overseas were "encouraged" to come to work nude to protest the overpackaging of so many consumer goods.

From a Lush press release -

New York, NY – Wearing nothing but aprons reading “ASK ME WHY I’M NAKED”, employees of LUSH Fresh Handmade Cosmetics will lead a cheeky protest urging shoppers to go ‘naked’ by purchasing products free of packaging. The brave shop workers will educate passers-by on the devastating environmental impact of packaged goods sold in cosmetic shops, supermarkets, and other retailers.

Could encouraging your employees to come to work in the nude be considered harassment? It depends.

One attorney I spoke to asked if it were a quid pro quo situation ... (in other words, were their jobs connected to participation in the nude workday?)

At this point, I have no way of knowing if their job was directly dependent upon participation. But there are more subtle forms of quid pro quo harassment than an outright demand which could push someone into participating because of perceived risks of refusing. Peer pressure or culture of compliance on the job are also powerful tools for "forcing" someone to go along.

The event could also be considered a subtle form of sexual harassment, if it created a sexually charged or hostile environment. Characteristics would of this would include:

• unfulfilled threats to impose a sexual quid pro quo;
• discussing sexual activities;
• telling off-color jokes;
• unnecessary touching;
• commenting on physical attributes;
• displaying sexually suggestive pictures;
• using demeaning or inappropriate terms, such as "Babe";
• using indecent gestures;
• granting job favors to those who participate in consensual sexual activity;
• using crude and offensive language.

Would encouraging nakedness at work fall into a sexual activity category? It would seem that it could be so. If displaying sexually suggestive pictures is harassment, wouldn't nudity in the workplace be even a step beyond that?

What are your thoughts on it?

‘Encouraged’ nudity grounds for harassment?