This week the EEOC reconvened its Select Task Force on the Study of Harassment in the Workplace. EEOC Chair Victoria A. Lipnic stated in public comments that the agency has not seen a rise in EEOC complaints or charges of discrimination as a result of the #MeToo movement. This might come as a surprise to many, given the publicity given to sexual harassment claims and lawsuits (such as this one against former Fox News host Bill O’Reilly and complaints against Colorado lawmakers). However, in looking at the bigger picture of sexual harassment complaints in the workplace this is far less surprising.
What the EEOC tells us about the impact of #MeToo on sexual harassment complaints
The EEOC Chair disclosed that there has not been a recent increase in complaints of sexual harassment to the agency; however, there has been an increase in website traffic to EEOC resources on sexual harassment. This suggests there is a greater awareness of sexual harassment issues in the workplace but those issues are not funneling up to the anti-discrimination agency. Chairwoman Lipnic also points out that in her conversations with HR professionals and employment lawyers, there is an uptick in sexual harassment complaints to employers. Those complaints find internal resolution from the employer so pursuing external complaints to the EEOC is less often necessary.
The BLR HR blog sought out comments from employer-side employment lawyers on these comments. The lawyers acknowledged there has been more activity but employers are taking steps to improve training and procedures to deal internally with complaints of sexual harassment. They claim employers are motivated by the publicity of the #MeToo movement so there is at least some positive impact across employers even if it is less visible.
Why internal complaints of sexual harassment prevent employees going to the EEOC
There are three main reasons why effective internal procedures for reporting sexual harassment within employers reduces the likelihood that the employees will seek an employment lawyer or file an EEOC charge of discrimination.
1. A change in the corporate culture to take sexual harassment complaints seriously reduces the likelihood that harassment occurs.
A key reason why sexual harassment remains an ongoing problem in the workplace is that the harasser feels he or she can get away with the offensive conduct without consequences. Too often harassers feel empowered to cause harm to other employees because they feel there is a lack of consequences for their actions. If a potential harassers feels employees are more likely to report harassment and the employer may treat the complaints more seriously then the risk to the potential harasser increases substantially.
2. Most harassed employees want the hostile work environment to end, not make waves.
Generally employees who suffer workplace harassment just want the harassment to end and to make sure it does not happen in the future. That is especially true when the harassed employee fears retaliation for reporting harassment. For most people, experiencing sexual harassment at work is an incredibly humiliating situation that they want to end with as little publicity as possible.
Many fear reporting harassment to the EEOC or the Colorado Civil Rights Division will make retaliation more likely but eventually may feel they have no choice when internal reporting procedures fail to cure the harassment. Improving internal procedures to receive and act upon reports of sexual harassment means fewer harassed employees need to take the next step of reporting externally to the EEOC.
3. Employees have to report internally as a first step in most cases.
In the late 1990s, federal courts decided employees should have to report unlawful harassment to the employer and give the employer an opportunity to cure the harassment in most situations. This is known as the Ellerth/Faragher affirmative defense. If employees fail to take advantage of an internal complaint procedure then an employer can raise a defense against the employee in an employment discrimination lawsuit that the employer would have stopped if the harassment if it only knew.
Employees experiencing harassment and seeking out employment lawyers are likely being directed to make internal reports as a first step due to this affirmative defense. As internal procedures improve–or employers at least take them more seriously–these employees are hopefully gaining more satisfaction from these internal procedures than in the past. If the internal procedures effectively end the harassment then the need for an external EEOC complaint decreases.
What should Colorado employees do with a sexual harassment complaint?
The good news is that right now there is a high probability that sexual harassment will be dealt with in a meaningful manner by your employer if you report it internally. Eventually employers will probably slide back towards their prior position of treating complaints less seriously but how long before that happens is unclear. Employees suffering harassment should nevertheless take advantage of their employers’ diligence while it lasts.
If you work in Colorado and suffer sexual harassment or other forms of harassment then you should talk to an employment lawyer near you right away. Your lawyer can advise you about:
- Whether you need to make an internal complaint;
- Who to deliver the internal complaint;
- What to include in the complaint;
- What your next steps will be in the event the internal complaint does not solve the problem; and
- What additional steps you should take to document the harassment.