Sexual harassment incidents increase in 2018

In early October, the Equal Employment Opportunity Commission (EEOC) released its preliminary findings examining sexual harassment in the workplace over the past year. In the wake of the #MeToo movement, no one should be surprised to see the figures rise dramatically. The numbers demonstrate that employers need to be more vigilant than ever when it comes to addressing issues of harassment and discrimination in the workplace.

The numbers for fiscal year 2018 aren't yet official; the EEOC's Office of Enterprise Data and Analytics has to validate them before they can be finalized. But even if the final statistics are adjusted slightly in the near future, the Oct. 3 data release presents stark evidence that the #MeToo movement is not just a passing fad. Among the most significant statistics that should capture the attention of every employer:

Sexual harassment charges with the EEOC increased by more than 12 percent from fiscal year 2017. This represents the first increase in such charges in five years - and a massive one.

The EEOC's litigation attorneys filed 41 separate sexual harassment federal lawsuits on their own - more than a 50 percent increase from the previous year.

Reasonable cause findings in sexual harassment cases increased from 970 to nearly 1,200 - an increase of over 23 percent.

Successful conciliation proceedings (a formalized mediation process run by EEOC personnel) jumped from 348 to nearly 500 - a 43 percent increase.

In fiscal year 2017, the EEOC recovered $47.5 million for the victims of sexual harassment through administration enforcement proceedings and litigation. In fiscal year 2018, that number increased to nearly $70 million - a leap of over 22 percent.

Finally, the EEOC reported that website visits to its sexual harassment page more than doubled over the past year.

Given the increased interest and awareness of sexual harassment in the workplace, it was no surprise that the EEOC announced late last year that it was finalizing updates for guidelines on the subject for the first time in over 20 years. Acting EEOC Chairwoman Victoria Lipnic acknowledged that "the update comes up at a time of burgeoning publicity for sexual harassment and assault in the workplace," though she said the timing of the update was "purely coincidental."

After several years of drafting and editing, which included incorporating public opinion on key issues, the EEOC unanimously approved the new guidelines in early November 2017. The draft guidelines - some 70 pages in length - were then sent to the White House's Office of Management and Budget, with an expectation that they would be quickly approved and released to the public. Almost a year later, we're still awaiting their release.

The reason for the holdup is uncertain. Lipnic told Bloomberg Law in June that she has been "very persistent in trying to move it along," but the guidance remains mired in administrative red tape. Some suspect that the delay is political in nature, as the White House awaits the seating of a new EEOC General Counsel and two Republican nominees to the five-person commission. If that's the case, it's unlikely we will see any movement until next year's Congress begins its 2019 session.

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A five-step plan for employers

The delay in the guidelines' release is no excuse to simply sit and wait. As the raw statistics show, the modern sexual harassment revolution is in full swing. For that reason, it's recommended that employers immediately implement a five-step plan to address this issue.

Step 1: Adhere to modern standards

An employer that hasn't updated its sexual harassment policy in the past several years might be behind the curve. Recent court decisions have placed greater responsibility on employers to establish policies that address sexual harassment in a more realistic and thoughtful manner.

Step 2: Disseminate policies thoughtfully

A policy is worthless if it sits on a shelf and is never accessed by employees. To ensure that a policy is effective, inform employees of their employer's position on sexual harassment. Devise effective ways to do this besides only handing out a copy at the time of hire.

Step 3: Train managers to address issues

Training managers is a critical step. An organization could be held automatically liable for any proven sexual harassment if carried about by a managerial employee, so all of one's hard work developing and disseminating a policy could be deemed irrelevant if managers act inappropriately. Policies need to be drilled into their minds on at least an annual basis through formal training sessions.

Step 4: Promptly investigate any issues

Once a report of sexual harassment is received, it's time to take immediate action. If an investigation is delayed until work slows or until an important project is completed, an employer will send a signal to its workforce that this isn't a priority. Moreover, the employer could face hostile questioning under oath in a subsequent lawsuit about what it was doing that was so important that it trumped the well-being of its workers. Therefore, clear the decks and do everything reasonably possible to make the investigation one's highest priority.

Step 5: Enforce standards consistently

Finally, and perhaps most importantly, take action against the accused employee if the allegations against the person are substantiated through one's investigation. If employees figure out that a policy is toothless, they will lose respect for the organization and be dissuaded from reporting other misconduct. This could lead to legal trouble, but also flagging morale and high turnover among key contributors. The goal in meting out a response is to take action sufficient to ensure that the behavior is not reasonably likely to occur again.

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Rich Meneghello is a partner in the Portland, Oregon, office of Fisher Phillips, a national firm representing employers' interests in all aspects of workplace law. Contact him at rmeneghello@ fisherphillips.com, or follow him on Twitter at @pdxLaborLawyer.

Published: Tue, Nov 27, 2018

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