At EEOC hearing, witnesses discuss future of confronting harassment at work
Experts met to discuss the 'cultural awakening' that occurred in the aftermath of the #MeToo movement.
WASHINGTON — The "cultural awakening" that occurred in the aftermath of the #MeToo movement hasn't gone unnoticed by officials at the U.S. Equal Employment Opportunity Commission (EEOC), but the agency believes the fight against workplace harassment is far from over, acting chair Victoria Lipnic said Monday.
Lipnic spoke at a meeting that reconvened the EEOC's Select Task Force on the Study of Harassment in the Workplace, a group of 16 experts in fields including labor and employment law, worker advocacy and the social sciences. The meeting marked nearly two years since the task force authored a June 2016 report that outlined recommendations for preventing and investigating harassment; EEOC published the report about 16 months before allegations against film producer Harvey Weinstein went public, Lipnic said.
"The revelations about sexual harassment have been essential in raising the visibility of this issue," Commissioner Chai Feldblum said in an opening statement. "But shame on us if we don't use this opportunity to change the structures and cultures of our workplaces so that people do not experience harassment based on any protected characteristic — including race, national origin, disability, religion, age, sexual orientation or gender identity."
EEOC called on nine witnesses to provide written testimony and answer task force inquiries into the legal, managerial and technological remedies for harassment in the workplace during Monday's meeting.
Legal debate centers on non-disclosure agreements, mandatory arbitration
A divide surfaced between witnesses on the question of whether or not certain clauses commonly included in employment contracts, like non-disclosure agreements (NDAs) and mandatory arbitration clauses, perpetuate harassment in the workplace.
Elizabeth Tippett, associate professor at the University of Oregon, said that a few states, including Pennsylvania, are considering legislative options to ban NDAs covering sexual misconduct. Generally, companies would be able to continue to use such agreements, but they would need to include a "carve-out" that stipulates employees have the right to disclose certain types of misconduct, she said.
Arbitration clauses as they currently stand present a chilling effect to victims who wish to speak out, according to some: "People are not going to use a system if they feel there is not accountability on the other side," Tippet said.
Yet, management-side lawyers have a different view, articulated by Kathleen McKenna, a partner at Proskauer Rose. The arbitration process in particular may provide desired confidentiality on the part of the victim, and can aid in receiving a settlement. McKenna also argued that the process helps to resolve cases in which the facts aren't settled.
"I think what we need is some real talk, because the fact of the matter is that very often the facts of what happened are very much in dispute," she said. "We need to be very careful not to make bad facts make bad law."
Harassment charges haven't gone up significantly
The latest published figures from EEOC show that the total number of claims filed with the agency in its 2017 fiscal year (12,428) actually marked a decline compared to the previous year (12,860 in 2016).
Though EEOC is not yet prepared to release official figures, Lipnic said during the meeting that the agency had not seen an uptick in claims so far.
"I can tell you anecdotally, when I talk to plaintiff's attorneys, when I talk to management-side lawyers, when I talk to HR people, what I hear is that, internally, employers have seen an uptick within their own internal processes of people coming to HR complaining," Lipnic said in a press briefing, adding that companies may be opting to solve disputes before charges are filed with the agency.
"I would not at all view it as a success — an increase in our charge level — at all," Feldblum said during the briefing. Instead, at a conference with compliance officers, Feldblum said a high percentage of them saw a significant increase in complaints filed internally. "One of the things I said in response was, all of you who have seen significant increases, congratulations. That I do see as a significant statistic, because it shows that people feel safer and that they are making use of internal systems in a way that they haven't before."
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