Written Testimony of Carol R. Miaskoff Acting Associate Legal Counsel U.S. Equal Employment Opportunity Commission

Meeting of January 14, 2015 - Workplace Harassment

Good morning, Madam Chair and Commissioners. I will discuss the persistence of workplace harassment and the need for a new response; the significance of certain recent legal developments; and the importance to employers of adopting an effective anti-harassment program.

I. Workplace Harassment Is a Persistent Problem

Data about EEOC charges and complaints shows that harassment persists as a significant problem in the American workplace. Harassment is one of the most commonly alleged issues in charges against private sector employers. Since fiscal year 2010, over 25% of the charges filed with the EEOC each year included harassment allegations. ¹ For fiscal year 2014, EEOC's initial data shows that 6,862 out of 88,778 charges received by the EEOC alleged sexual harassment. Additionally, over 4848 charges alleging disability discrimination and over 9023 charges alleging racial discrimination also included claims of some form of harassment. Based on available industry data, the largest numbers of harassment charges have been in the health care and social assistance, retail, manufacturing, and restaurant industries.

A similar pattern is evident in the federal sector. Harassment is the most commonly alleged issue in discrimination complaints filed by federal employees.² And, between fiscal years 2011 and 2014, 30% of appeals resolved by the EEOC's Office of Federal Operations involved harassment claims.

As for EEOC litigation, over 24% of the lawsuits filed by the EEOC between fiscal years 2010 and 2014 involved harassment allegations. The cases, many of which were successfully resolved, illustrate troubling but not uncommon fact patterns. For example, in March 2012, an Aberdeen, Maryland car dealership agreed to settle an EEOC disability discrimination and harassment lawsuit alleging that an office worker was subjected to epithets such as "pill popper" and "psycho" (and was later fired while on medical leave) when she disclosed a recent psychiatric diagnosis to managers.³ In a race and national origin harassment case resolved in December 2014, an airplane fueling company at a Phoenix, Arizona, airport agreed to settle EEOC's allegations that managers routinely called fuelers who were from African nations including Sudan, Nigeria, Ghana, and Sierra Leone, "monkeys," and that the managers continued this abuse after the employees complained to the general manager.⁴

Many of the Commission's harassment cases involve vulnerable workers. For example, in litigation resolved in January 2013, the EEOC settled a lawsuit alleging egregious sexual harassment of female workers, including many teenagers, in fast food restaurants throughout the United States. The harassment ranged from obscene comments, jokes, and propositions to unwanted touching, exposure of genitalia, strip searches, stalking and even rape, and was perpetrated by managers in most cases. The EEOC also alleged that the employer retaliated against some of the women by cutting their hours, manufacturing discipline against them, and even firing them, while forcing other women to quit because the harassment made their working conditions intolerable.⁵

In May 2013, the EEOC settled a lawsuit alleging that a supervisor at a Washington state egg farm repeatedly demanded sexual favors from a female laborer, who worked alone in a henhouse, in order to keep her job. Taking advantage of her isolated workplace, the lawsuit alleged, the supervisor demanded sex on a weekly basis for seven years, from 2003 to 2010. The EEOC also alleged that when her co-workers raised complaints about sexual harassment to company management, they were fired or forced out of their jobs.⁶

In the same month, May 2013, the EEOC won a major jury verdict for 32 men with intellectual disabilities who had worked at a turkey processing plant for 20 years. The facts showed that the employer subjected them to verbal and physical harassment, denied them medical care, and housed them in substandard facilities - a rodent-infested "bunkhouse" with inadequate heating that was closed down by the state fire marshal as unsafe.⁷

Finally, almost one year later, in March 2014, a federal judge found a farm labor contractor liable for engaging in a systemic practice of harassing, discriminating, and retaliating against hundreds of Thai workers in the U.S. The judge cited examples of physical abuse, exploitation, and barbaric security measures at the pineapple plantations and dormitories where the Thai workers were forced to live.⁸

II. The Need for Improved Methods of Dealing with Harassment

While the EEOC has had major successes in enforcement and litigation of harassment cases, the persistently high number of harassment complaints strongly suggests that there is a need for some new thinking about how to prevent and correct workplace harassment. That is the reason for this meeting, and that is one of the reasons that EEOC is focusing on an outreach strategy for employers and employees that is designed to deter future violations.⁹

In FY 2014, EEOC staff provided training on combating harassment to a total of 49,563 people at 836 outreach events. This has included anti-harassment training that EEOC staff has provided for specific employers at their request that is tailored to their workforce and their particular challenges. For example, at an event for the Lee County Board of County Commissioners in Ft. Myers, Florida, the Miami District Director trained 40 senior management officials and 200 supervisors on identifying harassment early and stepping in to effectively stop it.

Today's meeting takes another step towards increasing the impact of our outreach and communication by identifying new approaches to preventing and correcting harassment.

III. Basic Legal Principles

When charges or complaints alleging harassment are filed against employers, the framework for legal analysis of the facts is generally well-established. This framework involves: coverage (harassment based on race, color, religion, sex, disability, or another statutorily-covered basis);¹⁰ causation (harassment because of the protected characteristic); unwelcomeness (harassment is unwelcome to the person targeted);¹¹ altered terms or conditions of employment (hostile work environment or quid pro quo); and employer liability.

Recent legal developments in two of these areas -- causation and employer liability -- are particularly notable.

A. Causation

There are some unique causation issues for sex-based harassment and, in this context, it is important to emphasize that sex-based harassment is not limited to conduct that is of a sexual nature, such as sexual advances, demands, or touching. It also includes conduct that denigrates members of one sex in the workplace, or that is based on the perception that an individual does not conform to culturally-created gender norms.¹²

The same legal principles are used to analyze claims of sex-based harassment whether the harasser and complainant are of the same sex or of opposite sexes. The Commission has held that discrimination against an individual because that person is transgender (also known as gender-identity discrimination) is discrimination because of sex that is prohibited under Title VII of the Civil Rights Act of 1964.¹³ In its brief to the Fifth Circuit in EEOC v. Boh Brothers (5th Cir. 11-30770), the Commission also stated that terms historically used against gay and lesbian persons are degrading sex-based epithets and constitute evidence of discrimination on the basis of sex.¹⁴ Finally, in its amicus curiae brief filed in Muhammad v. Caterpillar, Inc.,¹⁵ the Commission took the position that intentional discrimination, including harassment based on an individual's sexual orientation, can be proved to be grounded in sex-based norms, preferences, expectations, or stereotypes and thus violates Title VII's prohibition on discrimination because of sex.¹⁶

B. Employer Liability

The Supreme Court's most recent harassment decision, in Vance v. Ball State University,¹⁷ involved the scope of vicarious employer liability for harassment. Although the Supreme Court had, in 1998, explained vicarious liability for harassment by supervisors, the Court did not define "supervisor" until its 2013 Vance decision. There, the Court held that employers are vicariously liable for an employee's harassment if that employee had authority to undertake tangible employment actions affecting the target of the harassment - and is therefore his "supervisor." Although employees with less authority do not subject an employer to vicarious liability, the Court was clear that the nature and degree of authority wielded by the harasser are important factors in determining whether the employer is liable for failing to act reasonably to prevent or correct harassment by that individual. Significantly, the Court in Vance noted that, "[a]ssuming that a harasser is not a supervisor, a plaintiff could still prevail by showing that his or her employer was negligent in failing to prevent harassment from taking place."¹⁸

As the ramifications of the Vance decision are developed through litigation, the courts are addressing a range of issues including the scope of the term "tangible employment action" and whether it extends beyond actions with economic consequences, as well as the role of delegated decisionmaking in assessing whether individuals are, in fact, "supervisors" for liability purposes.

IV. Best Practices

Employers and the EEOC have been working to identify practices to correct and prevent harassment since the Supreme Court provided the strong incentive to do so in its 1998 Faragher and Ellerth decisions.¹⁹ While EEOC's long-term goal is to motivate some new thinking about how to prevent and correct harassment, the basic parts of a harassment policy and complaint procedure are now well-established and are worthy of quick summary:

• The policy should explain what harassment is, and what kinds of harassment are against the law. It may be helpful to use examples. The policy should be written in a style that is understandable to the workforce. For example, for a workforce that includes many teens, it should be understandable to the average high school student.
• The policy should assure employees that the employer will not punish them or retaliate against them for reporting harassment, and that the employer will protect the confidentiality of harassment complaints to the extent possible.²⁰
• The policy should encourage employees who are harassed, or who observe harassment, to report it as soon as possible (thus giving the employer the maximum possible time to correct it). The procedure should allow employees to report harassment to a few different people and/or offices, so that they can always avoid the harasser if he or she is a supervisor or manager.
• Employers should find effective ways to provide periodic refreshers about the anti-harassment policy and procedures for everyone in the organization -- from the owner to the most junior worker.
• Once an employer is on notice of potential harassment, the employer should investigate and, if necessary, take immediate action to stop offensive conduct.
• The employer should have a clearly outlined investigation and reporting procedure, with as much confidentiality as possible given the need to investigate. The people who conduct the investigation should be trained and have the support needed to conduct an effective investigation.
• When the investigation concludes that harassment occurred, the employer should make certain that the harassment does not continue or resume. This may include disciplining the harasser as appropriate, or taking other actions to protect the victim, as long as they do not harm the victim. The employer should find an effective way to review the anti-harassment policy with the workforce in the aftermath of the incident, beyond simply re-posting or re-reading the policy.
• Employers should keep records of harassment complaints and check the records when a complaint is made to determine if any patterns of harassment are becoming evident. If they are, the employer needs to correct the pattern.
• Applicants for supervisory jobs should be screened to see if they have a history of engaging in harassment. If an individual with a history of harassment is hired, the employer should take steps to monitor his or her actions closely in order to prevent harassment.
• Employers should monitor situations in which employees have complained of harassment and corrective action has been taken to ensure that the corrective action is effective and that the harassing behavior has not continued.

Footnotes

¹See, e.g., EQUAL EMP'T OPPORTUNITY COMM'N, Enforcement & Litigation Statistics, http://www.eeoc.gov/eeoc/statistics/enforcement/all_harassment.cfm (last visited Jan. 13, 2015)

²See EQUAL EMP'T OPPORTUNITY COMM'N, Fiscal Year 2012 Annual Report on the Federal Work Force Part I: EEO Complaint Processing, p.I-11, Annual Report on the Federal Work Force Part I (PDF) (last visited Jan. 5, 2015).

³ Press Release, Equal Emp't Opportunity Comm'n, Adams Jeep of Maryland to Pay $50,000 to Settle EEOC Disability Discrimination Lawsuit (March 23, 2012), http://www.eeoc.gov/eeoc/newsroom/release/3-23-12.cfm.

⁴ Press Release, Equal Emp't Opportunity Comm'n, Swissport Fueling to Pay $250,000 to Settle EEOC Race and National Origin Harassment Lawsuit (Dec. 2, 2014), http://www.eeoc.gov/eeoc/newsroom/release/12-2-14b.cfm.

⁵ Press Release, Equal Emp't Opportunity Comm'n, Carrols Corp. To Pay $2.5 Million to Settle EEOC Sexual Harassment and Retaliation Lawsuit (Jan. 9, 2013), http://www.eeoc.gov/eeoc/newsroom/release/1-9-13.cfm.

⁶ Press Release, Equal Emp't Opportunity Comm'n, Egg Giant National Food to Pay $650,000 To Settle EEOC Sexual Harassment Lawsuit (May 16, 2013), http://www.eeoc.gov/eeoc/newsroom/release/5-16-13.cfm.

⁷ Press Release, Equal Emp't Opportunity Comm'n, Jury Awards $240 Million for Long-Term Abuse of Workers with Intellectual Disabilities (May 1, 2013), http://www.eeoc.gov/eeoc/newsroom/release/5-1-13b.cfm; Press Release, Equal Emp't Opportunity Comm'n, Intellectually Disabled Workers Awarded $1.3M for Pay Discrimination by Henry's Turkey Service (September 19, 2012), http://www.eeoc.gov/eeoc/newsroom/release/9-19-12a.cfm. The award was subsequently reduced to about $1.6 million to comply with statutory caps on damages. Abigail Rubenstein, Landmark $240M EEOC Disability Verdict To Be Cut To $1.6M, http://www.law360.com/articles/440988/landmark-240m-eeoc-disability-verdict-to-be-cut-to-1-6m (last visited Jan 5, 2015).

⁸ Press Release, Equal Emp't Opportunity Comm'n, Federal Judge Finds Global Horizons Liable for Discriminating, Harassing, and Retaliating Against Hundreds of Thai Farm Workers in EEOC Suit (Mar. 24, 2014), http://www.eeoc.gov/eeoc/newsroom/release/3-24-14.cfm.

⁹ Indeed, over two years ago, in December 2012, the Commission decided to prioritize the effort to reduce harassment by making it one of the agency's six national priorities for the next four years. As the Commission explained in its Strategic Enforcement Plan, "while investigation and litigation of harassment claims has been successful, the Commission believes a more targeted approach that focuses on systemic enforcement and an outreach campaign aimed at educating employers and employees will greatly deter future violations." EQUAL EMPLOYMENT OPPORTUNITY COMM'N STRATEGIC ENFORCEMENT PLAN FY 2013-2016, Priority 6, "Preventing Harassment Through Systemic Enforcement and Targeted Outreach." http://www.eeoc.gov/eeoc/plan/sep.cfm#sdendnote18anc (last visited Jan. 5, 2015).

¹⁰ The EEO statutes also prohibit harassment based on the "intersection" of two or more protected classes, such as harassment against African-American men. See Harris v. Maricopa Cnty. Superior Court, 631 F.3d 963, 976-77 (9th Cir. 2011) (district court erred in treating plaintiff's claim as alleging harassment against him as a male and separately as a Black person, rather than as alleging harassment against him as a Black male).

¹¹See, e.g., Gerald v. Univ. of P.R., 707 F.3d 7, 17 (1st Cir. 2013); Mandel v. M & Q Packaging Corp., 706 F.3d 157, 169 (3d Cir. 2013); Williams v. Herron, 687 F.3d 971, 975 (8th Cir. 2012); Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982); Lemmon v. Ayres, 860 F. Supp. 2d 489, 513 (S.D. Ohio 2012); Moberly v. Midcontinent Commc'n, 711 F. Supp. 2d 1028, 1038 (D.S.D. 2010). Unwelcomeness is based on the perspective of the person subjected to harassment. However, the harasser also must have reason to be aware that his or her conduct is unwelcome.

¹²See Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (Title VII prohibits discrimination based on biological sex or gender stereotyping (citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989))); Smith v. City of Salem, Or., 378 F.3d 566, 572 (6th Cir. 2004) ("sex" under Title VII includes "gender," which designates men and women as social, rather than biological, classes); Centola v. Potter, 183 f. Supp. 2d 403, 401 (D. Mass. 2002) ("Sexual orientation harassment is often, if not always, motivated by a desire to enforce heterosexually defined gender norms.").

¹³Macy v. Dep't of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 20, 2012). See also Jameson v. U.S. Postal Serv., EEOC Appeal No. 0120130992, 2013 WL 2368729 (May 21, 2013) (intentional misuse of the employee's new name and pronoun may cause harm to the employee, and may constitute sex-based discrimination and/or harassment); Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120133123, 2014 WL 1653484 (Apr. 16, 2014) (a sex discrimination allegation involving the failure to revise agency records pursuant to changes in gender identity stated a valid Title VII claim); Glenn, 663 F.3d at 1316-17 ("A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes"; "discrimination against a transgender individual because of her gender-nonconformity is sex discrimination"); Burnett v. City of Philadelphia-Free Library (E.D. Pa. No. 2:09-cv-04348) (Statement of Interest of United States filed Apr. 4, 2014) (U.S. Dept. of Justice argued discrimination against a transgender individual because she does not conform to gender stereotypes is discrimination because of sex under Title VII). See also Attorney General's December 15, 2014 directive to federal agencies indicating that Title VII's prohibition of sex discrimination encompasses discrimination based on gender identity, including transgender status, available at http://www.justice.gov/opa/pr/attorney-general-holder-directs-department-include-gender-identity-under-sex-discrimination.

¹⁴ 731 F. 3d 444 (5th55thCir Cir. 2013). In February 2014, Boh Brothers Construction agreed to pay $125,000 to resolve the matter. Press Release, Equal Emp't Opportunity Comm'n, "Boh Bros. Construction Co. to Pay $125,000 for Same-Sex Harassment in EEOC Lawsuit (Feb. 27, 2014), http://www.eeoc.gov/eeoc/newsroom/release/2-27-14.cfm.

¹⁵ 767 F.3d 694 (7th Cir. 2014), as amended on denial of reh'g, 2014 WL 4418649 (7th Cir. Sept. 9, 2014).

¹⁶See Hall v. BNSF Railway Co., 2014 WL 4719007 (W.D. Wash. Sept. 22, 2014) (allowing Title VII sex discrimination claim to proceed challenging employer's policy providing health benefits to opposite-sex but not same-sex spouses of legally married employees); Terveer v. Billington, No. 12-1290(CKK), 2014 WL 1280301 (D. D.C. Mar. 31, 2014) (plaintiff's allegation that discrimination occurred because of "plaintiff's status as a homosexual" - without more - plausibly suggested the discrimination was based on gender stereotypes, and thus stated a Title VII sex-discrimination claim); Brooker v. U.S. Postal Serv., EEOC Request No. 0520110680, 2013 WL 4041270 (May 20, 2013) (complainant stated a valid harassment claim based on sex stereotyping); Veretto v. U.S. Postal Serv., EEOC Appeal No. 0120110873, 2011 WL 2663401 (July 1, 2011) (complainant stated plausible sex-stereotyping claim alleging harassment because he married a man); Castello v. U.S. Postal Serv., EEOC Request No. 0520110649, 2011 WL 6960810 (Dec. 20, 2011) (complainant's allegation of sexual orientation discrimination was a claim of sex discrimination because it was based on the sex stereotype that having relationships with men is an essential part of being a woman).

¹⁷ 133 S. Ct. 2434 (2013).

¹⁸Id. at 2453.

¹⁹See Faragher, 524 U.S. 775 (1998) and Ellerth, 524 U.S. 742 (1998).

²⁰See EQUAL EMPLOYMENT OPPORTUNITY COMM'N ENFORCEMENT GUIDANCE: VICARIOUS EMPLOYER LIABILITY FOR UNLAWFUL HARASSMENT BY SUPERVISORS (VICARIOUS LIABILITY GUIDANCE) (June 18, 1999), http://www.eeoc.gov/policy/docs/harassment.html, at V.C. for more on establishing, publicizing, and enforcing anti-harassment policies and complaint procedures. See also EQUAL EMPLOYMENT OPPORTUNITY COMM'N REPORT: MODEL EEO PROGRAMS MUST HAVE AN EFFECTIVE ANTI-HARASSMENT PROGRAM, http://www.eeoc.gov/federal/model_eeo_programs.cfm (report on federal agencies' anti-harassment policies and procedures outlining common deficiencies).