By Deryn Sumner

My colleagues and I are never going to see settlements in the range of $20 million dollars, as Fox News agreed to pay out a few days ago, after being hit with a sexual harassment lawsuit filed by Gretchen Carlson and others.  But harassment in the federal workplace does exist, even if we’re not dealing with such high numbers in settlements.  As I mentioned in one of my other newsletter articles this month, the EEOC issued revised Enforcement Guidance on Retaliation in August 2016.  The Commission has had a busy summer, as it also issued a report of the “Select Task Force on the Study of Harassment in the Workplace” in June 2016.  The report was issued by two of the EEOC’s Commissioners, Chai R. Feldblum and Victoria A. Lipnic.  (Hat tip to one of my Firm’s law clerks, Chauna Pervis, who clerked for Commissioner Feldblum this summer and alerted me to the report).

The report is extensive, totaling more than 150 pages, and walks through two main topics: “What We Know About Harassment in the Workplace” and “Preventing Harassment in The Workplace.”  The Commissioners end the report by providing a summary of recommendations and checklists for employers.  Although this space is too limited to delve into all of this report, I did want to highlight some points that I think are most useful for our FELTG audience.

The report notes that it focused on a broad view of harassment, that is, claims of being treated poorly in the workplace because of membership in a protected class.  The report is careful to note that under the legal framework, not all of these allegations examined would constitute actionable harassment.  That is, that some of the allegations would not be sufficiently severe or pervasive to state successful claims.

The report notes that during fiscal year 2015, federal employees filed 6,741 complaints alleging harassment, which constituted 43% of all complaints filed by federal employees.  (Careful readers may wonder how the Commission can represent that formal complaints alleging retaliation constitute the most frequent basis alleged.)  To that I have two words: retaliatory harassment.  Okay, a few more words for those in the back: retaliation is a basis and harassment is a legal theory under which you have to establish treatment motivated by membership in a protected class, i.e. basis.

Some more fun statistics, straight from the report. Of the total number of complaints, filed in FY2015 by federal employees alleging harassment, approximately:

  • 36% alleged harassment on the basis of race,
  • 34% alleged harassment on the basis of disability,
  • 26% alleged harassment on the basis of age,
  • 12% alleged harassment on the basis of national origin,
  • 7% alleged harassment on the basis of sex, and
  • 5% alleged harassment on the basis of religion

The report focuses on the business case for addressing claims of harassment, including the cost of resolving the viable claims (and, let’s be honest, the nuisance ones as well), as well as the costs to productivity and morale caused by harassment, the desire to promote retention of good employees, and the harm to a company’s reputation when claims of harassment go public.

The report even cites to a 1994 MSPB report on Sexual Harassment in the Federal Workplace to illustrate the point of lost productivity:

Imagine an employee who’s being bothered by a coworker who leers at her or makes comments full of innuendo or double entendres, or who tells jokes that are simply inappropriate in a work setting. The time this employee spends worrying about the coworker, the time she spends confiding in her office mate about the latest off-color remark, the time she spends walking the long way to the photocopier to avoid passing his desk, is all time that sexual harassment steals from all of us who pay taxes.

Adding up those minutes and multiplying by weeks and months begins to paint a picture of how costly sexual harassment is. Increase this one individual’s lost time by the thousands of cases like this in a year, and the waste begins to look enormous. And this may well be a case that doesn’t even come close to being considered illegal discrimination by the courts. Whether or not they’re illegal, these situations are expensive.

No report of a taskforce would be complete without recommendations and this one has many, including suggestions for revising training (noting that many training programs are focused on allowing employers to assert affirmative defenses to claims and not to prevent harassment), changing a culture of a workplace from the top down to be clear that harassment is not tolerated (although it includes an admonition against “zero tolerance” policies, noting that they are often ineffective), and tips to address conduct carried out through social media.

The complete report is available here: [email protected]  

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