Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Equal Employment Opportunity Commission’

EEOC reports (mostly) positive developments on sexual harassment

Monday, October 22nd, 2018

The Equal Employment Opportunity Commission reports that formal complaints of sexual harassment complaints are up significantly from 2017. The EEOC is also litigating substantially more harassment cases.

Amid the uptick in reported harassment, there is evidence that men are changing their behavior – in good and bad ways. While the impact of the #MeToo movement has mostly been positive, some leery men are going to the other extreme and avoiding female co-workers completely.

Formal harassment complaints and lawsuits have increased

The EEOC says it is leading the way in combating workplace sexual harassment. Through outreach and education, as well as through investigation and enforcement, the agency believes it’s making an impact:

  • Formal sexual harassment charges in fiscal year 2018 increased by more than 12 percent from 2017.
  • Reasonable cause findings increased by 23 percent and successful conciliations by 43 percent.
  • In complaints not resolved through mediation, the EEOC has filed 41 sexual harassment lawsuits, a 50 percent increase.
  • The EEOC recovered $70 million for victims in FY 2018, an increase of 47 percent.

In the aftermath of #MeToo, traffic to the EEOC website doubled in the past year as both employees and employers sought information on dealing with workplace harassment. The agency conducted hundreds of outreach events to educate individuals and employers

Some men are taking the wrong message from #MeToo

Overall, the #MeToo movement has affected real and positive change. More women (and men) are confronting abuse and reporting sexual harassment rather than quietly tolerating it. Employers, including government agencies, are re-examining their policies and doing more trainings. Habitual and egregious offenders are being fired or otherwise suffering real consequences.

At least anecdotally, males in the workplace are changing their behavior, out of self-preservation if not because they genuinely “get it.” From sexual come-ons and inappropriate touching and to sharing sexual jokes or pictures, men appear to be getting the message.

But there has been some unexpected backlash from the #MeToo campaign. Some men in positions of power are intentionally avoiding or excluding female counterparts to avoid being accused of harassment. For example, women may not be invited to key meetings or after-hours events. Some men say they will no longer mentor women or hire female assistants. Some go so far as to avoid riding in an elevator or vehicle with female co-workers.

This overreaction has the unintended consequence of limiting opportunities for women and creating barriers. Such behavior can rise to the level of retaliation, sex discrimination or creating a hostile work environment.

This blog was originally published by Passman & Kaplan, P.C., Attorneys at Law on October 22, 2018. Reprinted with permission. 

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

22 Democratic senators want to know how sexual harassment financially impacts women

Tuesday, January 30th, 2018

Twenty-two Democratic senators are calling on the Labor Department to collect additional, better data regarding sexual harassment in the workplace.

The senators sent a letter to the department, signed by Sen. Kristen Gillibrand and co-signed by Sens. Elizabeth Warren (D-MA), Kamala Harris (D-CA), Cory Booker (D-NJ), and Bernie Sanders (I-VT), among others. Not a single Republican senator attached their name to the letter.

“What is known is that harassment is not confined to industry or one group. It affects minimum-wage fast-food workers, middle-class workers at car manufacturing plants, and white-collar workers in finance and law, among many others,” the senators wrote in the letter, provided to Buzzfeed. “No matter the place or source, harassment has a tangible and negative economic effect on individuals’ lifetime income and retirement, and its pervasiveness damages the economy as a whole.”

The Equal Employment Opportunity Commission reports that anywhere from 25 percent to 85 percent of women report having been sexual harassed in the workplace. An ABC News-Washington Post poll taken shortly after the New York Times bombshell report on Harvey Weinstein found that 33 million U.S. women, or roughly 33 percent of female workers in the country, have experienced unwanted sexual advances from male co-workers. Among those women who have been sexually harassed in the workplace, nearly all, 95 percent, say their male harassers typically go unpunished.

What this data doesn’t reveal, however, are the financial and personal costs of sexual harassment that women endure — and that’s exactly what these senators are in search of.

Workplace harassment has physical and psychological consequences, including depression and anxiety. These consequences can manifest themselves in missed workdays and reduced productivity, in addition to decreased self-esteem and loss of self-worth in the workplace.

In the restaurant industry, where 90 percent of female workers have experienced sexual harassment, more than half of these women endured the behavior, by both customers and co-workers, because they relied on the money. The Gillibrand letter describes these women as being “financially coerced” into enduring toxic workplace environments.

Sexual harassment in the workplace often forces female victims to leave their jobs to avoid continuing to experience the harassment. This frequently occurs in science, technology, and engineering fields, rather than low-wage service jobs.

According to data collected by sociologist Heather McLaughlin and others, about 80 percent of women who’ve been harassed leave their jobs within two years.

This call-to-action from Congress comes at time when the governing body is still trying to grapple with its own sexual harassment problem. As recently as this week, Sen. Marco Rubio (R-FL) flew to Washington D.C. from Florida to fire his chief of staff over sexual misconduct allegations.

Lawmakers in the House of Representatives unveiled bipartisan legislation last week to overhaul sexual harassment policies on Capitol Hill. The policy, as it stands now, overwhelmingly protects the harasser.

The new legislation also includes language that bars lawmakers from using taxpayer funds for settlements. As was first reported by the New York Times, Rep. Patrick Meehan (R-PA) used taxpayer money to settle a complaint from a former staffer. Rep. Blake Farenthold (R-TX) similarly confessed he agreed to an $84,000 settlement after a former aid accused him of sexual harassment. Farenthold as allegedly pledged to take out a personal loan to pay back the $84,000 dollars.

According to a GOP aide familiar with how the House sexual harassment legislation was crafted, Farenthold’s case led to the inclusion of a provision that would prevent the Office of Congressional Ethics (OCE) from reviewing complaints. Instead, complaints would automatically be referred to the House Ethics Committee, bypassing the agency in an effort to streamline the process.

The OCE reviewed complaints against Farenthold in 2015 but concluded there was not substantial reason to believe he sexually harassed his staffer.

This article was originally published at ThinkProgress on January 29, 2018. Reprinted with permission.

About the Author: Rebekah Entralgo is a reporter at ThinkProgress. Previously she was a news assistant and social media coordinator at NPR, where she covered presidential conflicts of interest and ethics coverage. Before moving to Washington, she was an intern reporter at NPR member stations WLRN in Miami and WFSU in Tallahassee, Florida. She holds a B.A in Editing, Writing, and Media with a minor in political science from Florida State University.

Do Nondisclosure Agreements Perpetuate a Toxic Workplace Culture?

Thursday, November 2nd, 2017

In Hollywood, the cat is out of the bag. Scores of women (and men) are pouring out pent-up tales of sexual assaults and sexual harassment by famous producers, directors and actors. Every day brings new accusations against some movie icon. A group of women at Weinstein Co. has asked to be released from nondisclosure agreements so they can speak publicly to Harvey Weinstein’s alleged decades of predatory abuse and brazen quid pro quo demands.

The mere fact that an entire group of employees at one company is seeking to be unmuzzled is testament to a deep problem. Nor is it limited to the entertainment industry. NDAs and “hush money” settlements are common in every employment sector, including government agencies.

Sweeping it under the rug … until someone notices the lumps

There are two types of nondisclosure agreements at play in scenarios like the Weinstein saga:

First, there are standard NDAs in employment contracts which prevent employees from speaking up about what they’ve seen or experienced. These are a preemptive strike against disclosures that would reflect negatively on the company. When victims, witnesses and allies are effectively gagged, offenders are off the hook and a culture that tolerates sexual harassment is perpetuated.

Second, there are nondisclosure “agreements” thrust upon victims after the fact when they report harassment/assault or threaten legal action. In exchange for a payoff and/or a specifically worded NDA, they keep their jobs or walk away with a settlement and never speak of it again. The alternative is the threat of being blacklisted and smeared.
Again, this dynamic is not unique to Hollywood. Sexual harassment and coerced silence happens in every industry.

How nondisclosure agreements inhibit sexual harassment claims

A few mavericks have violated their NDAs with the Weinstein Co., knowing the company would face fierce public backlash if it tried to enforce the confidentiality agreements. But most people who are subject to NDAs do not have the upper hand. They can be terminated, sued and “outed” for breaching the agreement. The contract may specify monetary damages greater than the original settlement.

One-third of the 90,000 complaints to the Equal Employment Opportunities Commission in 2015 involved workplace harassment. About 45 percent of those cases were sexual harassment. A report by the EEOC revealed that taking formal action is the least common response for women or men who reported being sexually harassed at work.

Why would they not file a formal complaint or lawsuit? Some fear termination or other retaliation. Others fear they won’t be believed or that nothing will change. And some take no action because their hands are tied by employment agreements.

Many employment contracts and NDAs require that claims against the employer – including sexual harassment — be resolved through arbitration. Employers favor mandatory arbitration clauses because (a) there is no risk of a big jury award and (b) the proceedings are private. Whatever the outcome, it is kept quiet. For victims of sexual harassment who want their abuser exposed, arbitration is a dead end.

Nondisclosure agreements are not ironclad

The mere threat of enforcing an NDA is very effective. Some victims do not want the public exposure, expense and stress. Settling and staying mum was their way of making the best of an awful ordeal and moving on.

However, NDAs are not as bulletproof as most employees think. No employment agreement can supercede state or federal laws. A victim of a crime cannot be prevented from talking to police or testifying in court. An employer cannot prevent an employee from reporting sexual harassment to the EEOC. A settlement agreement and NDA only prevents the employee from suing the company and speaking publicly about the incident. And if the agreement was overreaching or coerced, it may not be enforceable.

If you are subject to a nondisclosure agreement, you also cannot be barred from talking to a lawyer. An employment law attorney can explain your rights, your legal options, and any possible consequences of breaching the NDA.

This blog was originally published at Passman & Kaplan, P.C., Attorneys at Law on November 3, 2017. Reprinted with permission. 

About the Author: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

Suggestions to the EEOC for Charge Intake and Processing

Tuesday, May 26th, 2015

Richard Seymour[Editor’s Note: The following is taken from Rick Seymour’s April 23, 2015 Comments to the EEOC on Charge Processing. It lists suggestions for improving EEOC practices in intake of charges. Changes to Mr. Seymour’s original article have been made to improve blog formatting and ease of access.]

Suggestions for Charge Intake and Processing

1. Make it easy for people to file timely charges of discrimination. Put a fillable form on the EEOC website, allow people to sign and file charges electronically and immediately, and serve the charges upon employers immediately. They can always be amended later, and the amendments promptly served. The IRS does it for taxes, and the NLRB does it for unfair labor practice charges. The Commission can do it too.

2. You can lead charging parties to preserve their rights by asking questions, the same way tax preparation software does, and filling out the charge based on answers. Insert the State and local FEPAs automatically, and allow for more than one because coverage remedies differ.

3. Insert a place where the charging party can identify counsel, and have the software ensure that counsel are always notified of events.

4. In any re-writings of charges, train staff so that they stop dropping claims by mistake, neglect, and inadvertence.

5. Put facts into the charges, and end the practice of replacing facts with uninformative boilerplate.

6. Allow charging parties to submit changes of address and changes of counsel online.

7. Do not hurt the agency’s credibility.

  • Stop taking the respondent’s words as golden and incense in front of it. This tells employers and employees alike that the Commission does not care about their facts. Only a real, questioning, examination of facts will restore credibility.
  • Train the Commission’s staff in critical thinking, give them performance standards, and eliminate those who cannot perform.
  • Stop premature kick-outs of charges shortly after they are received. Same-day kick-outs should be barred.

8. Help the agency do more with fewer resources. The agency cannot do it all, and trying to do so just wastes time and resources.

  • Use the information available, instead of turning up the agency’s nose at the available help. The greatest source of information with which to evaluate the position statement is the charging party and her or his counsel.
  • Charging parties and their counsel need to be given copies of respondents’ position statements and all their attachments, and invited to submit responses.
  • The position statements need to be served on the charging party and counsel as soon as they are received, ending the absurd practice in some offices of providing them only after the commission receives a file-stamped copy of the court Complaint.
  • The Commission should end the absurd practice in some offices of having staff members paraphrase the position statements, or re-write them. It burns up staff time and is not nearly as useful as providing the actual documents.
  • Those responses should be a great help to the Commission in focusing its investigation. Its offices should be required to follow up on the responses, instead of ignoring them and accepting the employer’s word as golden.
  • The responses should be provided to the employer for its comments.
  • More than one cycle may be needed. The important point is the Commission [uses] the parties to inform itself as to a lot of the facts, and the responses will allow a narrowing of the dispute.

9. The Commission should again become a national agency, instead of the present system of 50-odd principalities making up their own standards and procedures. The Commission’s pendulum of control tends to get stuck at the extremes, and the present system of letting every office do what it wants has not worked very well.

10. The commission should make it easy to contact every staff member. It should have an online directory of names, titles, locations, mailing addresses, telephone numbers, and e-mail addresses. Agencies like the State Department do this as a matter of routine. I went to www.state.gov and searched for “Telephone Directory” and this led me to [a PDF “Organizational Directory” which lists telephone numbers for many of the staff].

11. Whatever the outcome of Mach Mining, the Commission has major problems in its conciliation efforts. Those need to be tackled seriously. Again, agency credibility is at stake. Think about creating an internal appeal procedure to the Commission whenever a respondent thinks conciliation staff have done it wrong. That will take the commission time, but provide an invaluable insight and, in the event the Commission loses Mach Mining, will reduce the number of matters to be reviewed by the courts. [Ed. Note: The Seventh Circuit’s Mach Mining decision from April 29, 2015 can be found here.]

Reprinted with permission.

About the author: The author’s name is Rick Seymour. Richard Seymour graduated from Harvard Law School in 1968, and has worked in civil rights and employee rights ever since. In the 36 years since leaving the U.S. Commission on Civil Rights in 1969, he has spent more than 90% of his time representing plaintiffs in class actions.

For Mother’s Day, Let’s End Pregnancy Discrimination

Friday, May 8th, 2009

Forget the fancy brunches, chocolates and flowers for a moment. Mother’s Day is the perfect time to call attention to a persistent workplace issue: pregnancy discrimination.

In this country, anchored by adoration for Mom and apple pie, it’s almost unfathomable that discrimination against expectant mothers even exists. It is illegal under federal and state laws to discriminate against a working woman because she’s pregnant or has just given birth. Still, of the various types of workplace discrimination, the U.S. Equal Employment Opportunity Commission reports the largest rate of increase is in pregnancy discrimination charges.

While you’re out perusing the Mother’s Day cards, consider this: The number of pregnancy discrimination charges received by the EEOC increased from 3,387 cases in 1992 to 5,587 cases in 2007 – a jump of 65 percent. According to figures released in March, the EEOC received a record 6,285 complaints of pregnancy discrimination in 2008 and officials say they expect pregnancy complaints to rise even more sharply this year.

Why the dramatic increase? Women have a better understanding of their rights and are more willing to assert them. But there’s something else: It’s the economy. In tough times, complaints of discrimination always increase. This time around, pregnant workers are among those who appear to be taking the hit. But tough times also mean working women are less inclined to just walk away from discriminatory treatment – especially when finding another job isn’t such an easy thing to do.

Their stories are disturbing; even more so around the second Sunday in May.

Kelly worked part-time for a big-box retailer. When she was six months pregnant with her second child, she was told all part-time workers would have their hours reduced. Later, she learned that the other part-timers, both men, had maintained their hours. She filed a complaint with her HR office. She’s now seeking advice from an attorney.

Angelika had excellent performance reviews at the pharmaceutical company where she worked – until she announced she was pregnant. Suddenly, she began receiving sub-par evaluations. One hour after returning to work from maternity leave, she was told that she had been removed from all projects and her direct reports had been re-assigned to others. She was given a choice: enter a performance improvement plan or take a buy-out. She filed a state civil rights complaint. It’s been nearly a year. Her case is unresolved.

Thirty years after the Pregnancy Discrimination Act of 1978 was signed into law, too many women still face workplace jeopardy. PDA says that an employer cannot refuse to hire a woman because she’s pregnant, cannot fire her because she’s pregnant, and cannot demote her or dock her pay because she’s pregnant. Even asking a woman about her child-rearing plans is illegal if an employer does not do the same for male job applicants or employees.

Last month, responding to the dilemmas pregnant workers, new Moms and other caregivers face, the EEOC released employer best practice guidelines. The agency urged employers to adopt policies that could help them avoid discrimination complaints and see increased benefits to the business bottom line – regardless of the economic climate. The EEOC guidelines encourage employers to recognize that workers with care-giving responsibilities need family-flexible workplace policies.

Paid sick days and paid family leave are critical so workers can care for themselves and their families without losing their pay or their jobs. The U.S. is one of only six countries in the world that doesn’t require paid sick days or family leave. While the Family and Medical Leave Act (FMLA) provides up to 12 weeks of unpaid leave for the arrival of a new child or the serious illness of a spouse or parent, it only covers large employers and many workers cannot afford to take it.  Nearly 57 million American workers lack even a single paid sick day to care for themselves, and 100 million don’t have a paid sick day to care for a sick child.

Employers must also establish policies that increase workplace flexibility. Inexpensive solutions like accommodating unique family situations by allowing workers to set their starting and ending hours or decide when they take breaks or lunch periods, can make a huge difference for families and have been shown to positively affect worker productivity, as well.

Here’s some advice for workers who are pregnant, just had a child, or feel they may be discriminated against on the job because of their care-giving responsibilities: Know your rights! Document everything and keep a copy of your notes at home. If you belong to a union, talk to your steward. Or, seek help from your HR office. If you suspect discrimination, file a complaint. And speak out to support company and public policies that establish family-flexible workplace standards.

Government must protect workers with family responsibilities from illegal treatment and unfair job loss. But if we’re really sincere about showing Mom our gratitude, let’s get serious about supporting working mothers and mothers-to-be – not just on Mother’s Day, but every day, with workplace policies that provide the real economic security they need.

About the Author: Linda Meric is Executive Director of 9to5, National Association of Women, which helps strengthen women’s ability to achieve economic justice. 9to5 has staffed offices in Wisconsin, Colorado, California and Georgia and activists in cities across the country.

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