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ARTICLE : RISK FACTORS OF HARASSMENT EEO ACTIONS UNDER EEOC STATUTES SUBJECT TO PRIVATE AND PUBLIC EMPLOYERS: BY Javier Chacon, EEO Consultant & Mediators, 5/14/2010 (www.eeocconsultant.com)
As we review the Press Releases of EEOC's recent consent decrees and lawsuits, it is interesting to note the mistakes made by employers, large and small. Some of these employers are assumed to have sophisticated employment policies and the very best consultants and lawyers available, but yet they were vulnerable to the risk factors noted below. A Company's systems and processes are only as good as the people that manage them and the Executives upholding the Policy, so hopefully this will shed some reminders that all Companies are vulnerable to these type of actions.
In FY'09, the EEOC captured $ 132 ml in monetary benefits arising from Settlements of Harassment complaints in the administrative process; 26.3% came from sexual harassment complaints and the balance, 73.7 % associated with all 'OTHER Harassment complaints". Additionally, EEOC captured $ 82.1 ml through consent decree settlements of which approximately 40% involved harassment lawsuits. EEO HARASSMENT SETTLEMENTS CONTINUE TO BE THE NUMBER ONE EEO LIABILITY FOR EMPLOYERS OVER THE YEARS AND EXPECTED TO CONTINUE THROUGH THE FUTURE.
Below I enumerate some of the RISK FACTORS of EEO Harassment Complaints as a reminder to all employers, small or large, that all companies are vulnerable to these type of costly mistakes. EEOC violations normally involve a variety of evidence which could include a combination of evidence associated with the Risk Factors noted.
- Employees are unaware of the Company's EEO Policy and Procedures and how to report any inappropriate conduct;
- There exists no Company policy regarding prohibited harassment and retaliation subject to EEOC statutes;
- The Company's training program on its EEO Policy and Procedures are either ineffective, lacking, impersonal, or not done on a periodic basis;
- The Company's EEO Policy of "Zero Tolerance" for Harassment is not consistent with its practice and thus providing 'mixed signals' to the employees;
- Notification Procedures for filing EEO internal grievances are flawed, ineffective, or contradictory to other Company Policies addressing same subject;
- Employees do not use the Company's Internal EEO Grievance Procedure as the process has been tainted due to a lack of enforcement commitment from the Company's CEO;
- There are no consequences for Managers who learn of the 'inappropriate behavior of other employees' but fail to follow appropriate Company Policy regarding the 'reporting, investigation, or correction' of the alleged incident;
- The Employer does nothing to stop the alleged unlawful conduct and seems to have no real consequences for those responsible for the inappropriate conduct;
- The alleged inappropriate conduct is very egregious and the Employer should have known about it; and,
- All evidence supports the fact that a Company Supervisor was the Principal Instigator in a serious EEO harassment action.
Employers should periodically review their EEO Policy & Procedures to ensure if everything checks out according to practice; if not, make appropriate adjustments as required. Providing the Policies are updated, a training program should be designed and provided subject to Company Policy and state law, if applicable. It is highly recommended that the training be done separately for managers and other staff, and preferably customized and conducted by an outside consultant. At the minimum, the Program should review all updated highlights as noted on EEOC's Harassment Guidelines and court precedents on Employer's good faith affirmative defense obligations.
These guidance should be covered in conjunction with the Company's EEO Policy and Procedures to ensure everyone's responsibilities are covered as to compliance, reporting, investigating, settlement options, etc. A copy of the Company's EEO Policy and Procedures should be provided to each attendee and the Policy should be incorporated as part of the training. All attendees should be required to acknowledge that they have received this EEO Training and provided a copy of the Company's updated EEO Policy and Procedures, and each employee acknowledges he/she was provided an opportunity to ask questions regarding the Company's EEO Policy and Procedures, as updated. If you have employees who speak limited English, all policies and procedures need to be translated in their respective native language; additionally, any training provided to same group should also be conducted in their native language. For a sample copy of a Power Point addressing this topic, and Questions to ask subject to an EEO Harassment Investigation, review power points accessed through www.slideshare.com: 'Preventing Harassment in the Workplace" and "Recommended Questions for Harassment Investigations"( Resource Documents at WorkSource Presentation 10/2009). Thanks, J.Chacon, EEO Consultants & Mediators
EEO Article: Bullying Behavior in the Workplace vs. EEO Retaliatory Hostile Work Environment! By JChacon, EEO Consultants & Mediators, 05 16 2010 (www.eeocconsultant.com)
Yes, Bullying Behavior in the Workplace can definitely lead to an EEO Retaliatory Hostile Work Environment if directed toward a subordinate who raised a protected EEO activity against the Bullying Executive. The Executive, if truly a bully, will more than likely place the complaining party on a special radar screen subject to continuous bullying. However, this bullying behavior can now be construed as retaliatory if a casual connection can be made of the bullying behavior and the protected EEO activity. However, if the complainant had been subjected to bullying behavior before exercising protected EEO activity, the investigation would have to reflect that the bullying behavior has been accelerated, and in most instances it has. Also witness testimony will normally reflect that the Bullying Executive would say things to others about his vendetta toward the complainant regarding the EEO protected activity, and all of that testimony will be used by the EEOC in assessing the totality of evidence. Normally, the non-tangible retaliatory actions consists of : unjustified performance evaluations; demeaning assignments; removal of authority but salary/title not affected; unfulfilled threats; public scolding; minimizing or criticizing the complainant’s work accomplishments, recommendations, initiatives; and more, but its SEVERE and PERVASIVE, and made a condition of employment faced by the complainant on a daily basis. However, if this does not work in making the complainant resign, the Bullying Executive may elect to exercise tangible actions against the complainant: a Performance Improvement Plan; demoted; relocated; religion/disability accommodation challenged/denied and finally termination. All of these actions, non-tangible and tangible can be construed as supportive of a retaliatory hostile work environment providing there is a casual connection between the timing of the retaliatory actions, non-tangible and/or tangible actions, and the protected EEO activity. And Yes, we all know that this type of Leadership is very much alive in the workplace today in both the private and public sector.
So the Bullying Executive had his last hurrah by firing the complainant, is it over? No way, and most probably the complainant has filed a second complaint with the EEOC alleging a Hostile Retaliatory Work Environment, found a plaintiff lawyer on a contingency basis and filed a lawsuit in Court, possibly state court to seek the most damages available. And in most instances the complainant and lawyer held a press conference announcing the lawsuit and the specifics of the Hostile Environment putting the Company on the front page of the local newspaper and making the 6pm news at all local radio/television stations. So I have a Question, are Bulling Executives a liability for the Company? From my perspective, the answer is obvious as you have so many losses for the employer: high turnover; unhappy workforce; excessive sick leave; tyrant leader; production shortfalls; bad press for the Company; and potential landmines regarding both workplace violence and a Retaliatory EEO Workplace environment, ALL CONTRIBUTING TO UNNECESSARY EXPENSES, the BOTTOM LINE and POTENTIAL HIGH DOLLAR LIABILITIES! My recommendation to Employers is to have Executives who are high performers but also True Leaders who respect and motivate staff to their highest potential. Implement a 360 degree feedback evaluation process and review the feedback on your Executive’s leadership qualities as provided by customers and most important, the staff. Use this information to only have TRUE LEADERS, high performers in pursuit of the Company’s Core Values which should include: EXCELLENCE, TEAM BUILDING, EMPOWERMENT, OWNERSHIP, COMMITMENT AND MOST IMPORTANT, RESPECT FOR ALL! Limit your liabilities, HIRE A TRUE LEADER!
Thanks, Javier Chacon, EEO Consultants & Mediators.