EEOC on Harassment: Irresponsibly Wrong!

shutterstock_423915988On June 20, 2016, the EEOC “Select Task Force on Harassment” released its lengthy Task Force Report and staged an impromptu “hearing” to discuss their “findings.”  And predictably, media outlets and Biglaw legal alert teams scurried to blast these EEOC revelations with headlines like:

Sexual Harassment Training ‘not as effective’ in Stopping Behavior at Work

and

Harassment Is Still a Massive Problem in the American Workplace

Unfortunately, none of these media outlets or Biglaw legal alert teams bothered to delve beneath the surface of the EEOC’s representations. Upon closer examination, three fundamental flaws become quickly apparent: (1) Confusing Allegations for Actuality; (2) Discounting the Fact that All Harassment Allegations Lie in the Eyes of the ACCUSER; and (3) Effectively Encouraging Employers to Jettison Training as “Ineffective,” advice that is illogical, irresponsible, and simply ignorant.

Confusing Allegations for Actuality

In Part II.B of the Report, the EEOC opens with the assumption that “harassment remains a persistent problem,” based solely on the number of harassment charges it receives annually. True, harassment charges comprised more than 1/3 of the EEOC’s FY2015’s charging intake. But the number of charges only measures how often harassment is ALLEGED, not how often it actually OCCURS.  According to EEOC statistics, only 3.6% of EEOC charges alleging harassment merited a determination of reasonable cause to believe that legally actionable harassment occurred; likewise, in over 62% of these charges, the EEOC issued “no reasonable cause” determinations, a trend that has remained relatively stable since 1997. Thus, even based on the EEOC’s own data, “harassment” occurs far less often than ALLEGED.

The EEOC, however, frequently confuses allegations for actuality and makes sweeping generalizations based on the composition of its charge intake. This reasoning is illogical and dangerous, especially for the EEOC: according to data begrudgingly posted pursuant to the No Fear Act, internal complaints of discrimination within the EEOC have doubled (and race charges have tripled) since Chair Jenny Yang assumed the helm.  Should we assume, therefore, that Chair Yang has reduced the EEOC to a hotbed of discrimination, based on these alarming charge trends? Needless to say, in this context, the EEOC would agree that the number of charges means only that ALLEGATIONS of discrimination were raised. And of course, seasoned practitioners on both sides of the employment litigation bar know that trial lawyers routinely include harassment claims in their EEOC charges to preserve and expand the scope of discovery after National Railroad Passenger Co. v. MorganIndeed, harassment allegations form part of a common trifecta of claims—e.g., discrimination, harassment, and retaliation—that increasingly challenge employers’ TERMINATION decisions.

Discounting that “Harassment” Lies in the Eyes of the ACCUSER

The threshold element of any “harassment” claim is UNWELCOMENESS, which (1) EMPOWERS employees to leverage claims simply by taking offense; and (2) EXPOSES managers to the sensibilities and motivations of their subordinates.  No doubt, the manager-employee relationship can be inherently fraught with conflict: managers enforce standards, address under-performance, communicate corporate policy, etc.  And, as I’ve observed over 19 years in the litigation trenches, harassment allegations have become a favored weapon for under-performing employees to lash out at managers and buy time in the job (i.e., on the hope that employers will delay termination to avoid a retaliation claim).

“Harassment” can literally include A-N-Y-T-H-I-N-G.  In EEOC v. Picture People, the EEOC alleged that it was “harassment” for a retail employer to tell a profoundly disabled employee that even with her proposed accommodations, she could not effectively fulfill the job’s essential functions.  In another case I defended, an under-performer lodged a harassment complaint against her manager for using the phrase “knock the stuffin’ out of that Egg McMuffin.” And in another, an under-performing employee allegedly suffered “harassment” when her manager showed coworkers a cartoon insinuating (and certainly not depicting) that two cartoon caterpillars had just had sex. What constitutes “harassment” lies in the eyes of the Accuser, and although 99 employees may have laughed at a post-coitus caterpillar cartoon, it takes only ONE to derail a career.

To date, after 30 years of EEOC enforcement and 25 years of private litigation, the definition of “harassment” remains as elusive and expansive as ever before, as the EEOC seems to recognize: “anywhere from 25 percent to 80 percent of women have experienced it at some point in their careers, depending on how the term is defined.” (emphasis added).  Right . . .

Effectively Encouraging Employers to Jettison Training as “Ineffective”

The Task Force Report cautions readers not to read too much into its pithy segment on Workplace Training.  As the Report noted, few studies have analyzed what makes training effective from a behavioral change perspective, and thus, its brief treatment on training

implicate[s] only the effectiveness of the specific trainings that were evaluated. The data cannot be extrapolated to support general conclusions about the effectiveness of training, Part III.C.

That reasonable admonition, however, did not stop EEOC Commissioner Victoria Lipnic from mouthing off about the general efficacy of training at the recent national conference for the Society of Human Resources Management (SHRM).  According to comments attributed to Lipnic, the biggest Task Force “finding” was that it FAILED to FIND “any evidence that the past 30 years of corporate training has had any effect on preventing workplace harassment.”  Indeed, “[t]hat was a jaw-dropping moment for us,” said Lipnic.  The next day, featured prominently on the daily email report of SHRM’s national conference was the headline:

“No Evidence That Training Prevents Harassment, Finds EEOC Task Force”

Recently, The Guardian quoted EEOC Commissioner Chai Feldblum as stating:

We were surprised at the research that showed that the type of anti-harassment training that has been done to date … is not as effective in actually changing behaviors.

These statements about training are illogical, irresponsible, and ignorant of the basic psychological and organizational barriers that keep the compliance message from reaching MANAGERS—i.e., the organizational level where all violations and disputes occur.

Illogical

As a threshold issue, nowhere in the Task Force is there any “finding” about the general efficacy of training to prevent sexual harassment.  In fact, the Report states the exact opposite, namely, that the “data cannot be extrapolated to support general conclusions about the efficacy of training.” But as a matter of logic, one simply cannot PROVE that a particular intervention (i.e., training) PREVENTED an event that MAY or MAY NOT have occurred based on the ABSENCE of EVIDENCE. This breach of logic, formally called argumentum ex silentio, is particularly “jaw-dropping,” especially from ostensibly law-trained EEOC Commissioners.

Irresponsible

SHRM is the largest organization of HR professionals in the United States, maybe even the world. Its membership routinely convenes at conferences and monthly luncheons to hear the latest about the mercurial world of employment law and to take best practices back to their workplaces.  As the SHRM headline makes clear, the “takeaway” for many HR executives was this: training is not effective to prevent harassment and so, why bear the hassle and expense of it? Again, having worked with employers for 16 years under the attorney-client privilege, Lipnic’s irresponsible statement about training (especially online training) will discourage employers from investing in training altogether.

Unfortunately for employers, over the past two decades, whether employers offer regular training to their HR staff, managers, and employees has become the LITMUS TEST for minimal compliance.  Indeed, the EEOC and the plaintiff’s bar treat failure to offer regular training as per se evidence of “reckless disregard for employees’ federally protected rights,” the standard for imposing PUNITIVE DAMAGES.   Further, as the Task Force Report points out, the U.S. Supreme Court gave a nod to training in its 1999 Faragher v. City of Boca Raton and Burlington Industries v. Ellerth decisions, mentioning regular workplace training as evidence of an employer’s reasonable preventive efforts—i.e., the pivotal element of employer’s Faragher/Ellerth affirmative defense.

Training matters. To suggest, therefore, that employers jettison their anti-harassment training programs as INEFFECTIVE irresponsibly (1) exposes employers to punitive damages; (2) eliminates employer access to their Faragher/Ellerth affirmative defenses, and (3) deprives employers and stakeholders of the benefits of training DONE RIGHT.  In fact, regular management training can further the goals of equal employment opportunity by providing educational entrees to manager positions for African-Americans, Latinos, and Women (who lag behind other economic minorities toward achieving Official/Manager jobs).

Ignorant

The Task Force Report alludes to the involvement of psychologists and social psychologists in their research and recommendations.  Nowhere in the Task Force’s report, however, will readers find any analysis of the common psychological barriers that can interfere with an anti-harassment and anti-discrimination message from getting through to managers.  On the contrary, despite announcing that “[i]n simplest terms, training must change,” HERE, Lipnic and the Task Force “experts” overlooked common problems with training that undermine its efficacy from a behavioral change perspective, and then neglect to make recommendations about how to improve it, likely because potential solutions lie outside their respective wheelhouses.

Yet, instead of “throwing the baby out with the bathwater” by jettisoning training altogether, HR practitioners, employment lawyers, and professional trainers should acquaint themselves with several basic concepts borrowed from clinical, social, and educational psychology that bear directly on training efficacy:

Cognitive Dissonance. Normally occurring “cognitive dissonance” prevents people from perceiving their OWN conduct as harassing or discriminatory.  Numerous social psychology studies show that we humans universally rate ourselves as fair-minded, open, and non-judgmental, even while agreeing with blatantly racist statements in unconscious bias tests.  “Other people harass and discriminate,” managers say to themselves. “I would never harass and/or discriminate because I’m a good person.”  Partially for that reason, managers cannot conceive of the possibility that their conduct could be perceived as harassing or discriminatory—i.e., a fundamental disconnect between their intent and its effect on the listener.  I’ve defended or investigated more sexual harassment cases than I can remember, and almost always, the “harasser” will say, “I was just joking around,” or “I just said she had great boobs and that’s a compliment!” I’ve even written a funny folk song about this phenomenon, “Yep, That’s Harassment Indeed!”

In any case, because of this phenomenon, managers dread sexual harassment training and assume it does not apply to them–i.e., because they would never “harass”, they could never be ACCUSED of harassment, whether it’s harassment or not.  And so, they check out, rationalizing that the training is not relevant to them.

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Effective training penetrates that cognitive dissonance, and explains how sexual harassment allegations commonly arise in the workplace and how managers can protect themselves.  Even though most allegations are unfounded, the stain on the manager’s career is often permanent-i.e., the YOU Case.  Managers need a Managerial Miranda Warning (i.e., “everything you say can and WILL be used against you in a court of law”) that shines a light on the RISK inherent in their interactions with subordinate employees: even though 99 employees laughed at the caterpillar cartoon, for example, it only took one to derail a promising management career.  THAT message resonates with managers, and motivates them to coordinate more closely with their HR partners on termination decisions and workplace conflict issues.

Further, effective training also helps managers understand the COMMON ASSUMPTIONS even “good people” make that can lead to discriminatory employment decisions. Indeed, we humans apply a variety of psychological heuristics (i.e., mental reasoning shortcuts) as we navigate our world and make decisions.  By normalizing then addressing problematic mental shortcuts about Ability, Customer Preference, Tenure and Commitment, etc., training can help managers recognize when their own mental processes are leading them toward discriminatory decisions. WorkplaceTrainingHub.com has developed a program, “Common Assumptions that Lead to Discriminatory Decisions” to address this phenomena and help managers understand their own “isms”.  If we’re going to combat discrimination or harassment, we must break through the cognitive dissonance that keeps 100% of humans from perceiving their own conduct as discriminatory or harassing.

shutterstock_83361721Inadequate Program Design and Delivery.  According to EEOC Commissioners Feldblum and Lipnic, they seek to effectuate “behavioral change” in the workplace. But what do LAWYERS like Feldblum and Lipnic really know about THAT? Indeed, few law schools require coursework in Organizational Dynamics, Social Psychology, Cognitive Psychology, Group Dynamic Theory, Andragogy (i.e., adult learning science), etc.  On the contrary, the truly HELPFUL insights about workplace behavioral change reside far outside most lawyers’ wheelhouses, a fact that illustrates the FUNDAMENTAL PROBLEM with historic approaches to training: most programs are designed and delivered by LAWYERS.

workplacesnotworkingFew of these legal trainers, however, understand the SCIENCE of how adults take in and incorporate new information (i.e., andragogy).  Adults are skeptical and practical learners who evaluate new information for consonance (i.e., sounds right!), dissonance (i.e., WTF?), and relevance (i.e., what does that mean to me?).  Well-designed and delivered programs take into account adult learning psychology and present information in a manner that REACHES participants.  By contrast, most attorneys throw word-crap on a PowerPoint slide, talk about lawsuits, and then wonder why no one was engaged and why the training was “ineffective.”

Inaccessibility and Cost.  Finally, Commissioner Lipnic took a major swipe at ONLINE training options, claiming that to be effective,

you need training that is live, in-person and customized to your workplace. You need someone who understands what your workplace is.

This statement struck a dissonant chord, considering that the Task Force Report’s segment on training focuses on the need for more research—i.e.,  the Report “implicate[s] only the effectiveness of the specific trainings that were evaluated. The data cannot be extrapolated to support general conclusions about the effectiveness of training,” Part III.C.

No doubt, live training is more engaging and effective from an adult learning perspective. EEOC Commissioners too easily forget, however, that MOST ORGANIZATIONS (including the EEOC) have centralized management and decentralized operations, which makes it impossibly difficult to offer consistent regular training to managers and employees in the field.  Web-based training enables organizations to (a) deliver training across their diffuse operations at a reasonable cost; and (b) catch the “stragglers” who regularly dodge live training programs—i.e., typically the folks who most NEED training.  Web-based training also enables organizations to offer regular courses about the full gamut of EEO law, not just harassment. When training is expensive and difficult to arrange, organizations will forego it altogether.

But even beyond its affordability and accessibility, web-training training works very well from an adult learning perspective, when DONE RIGHT.  Understanding that adults are skeptical learners, well-designed web-based training offers participants TOOLS (e.g., social scripts or event schemas, in psychology) to try out at work. Through their own post-training experimentation, participants discover that these new TOOLS work well, which reinforces their use, ensures internalization, and promotes mastery (i.e., learning). Learn more HERE. Thus, contrary to Commissioner Lipnic’s untutored and unsupported opinions on what makes training “effective,” web-based training surmounts all the obstacles that prevent organizations from offering any training at all.

Illogical.  Irresponsible.  Ignorant.

Stakeholders and employers deserve better from the EEOC.

Merrily S. Archer, Esq., M.S.W.

June 30, 2016