Business compliance with federal employee protections had been moving into the peripheral vision of business owners and chief executives when the #MeToo movement happened.
In the year after the movement highlighting workplace harassment became front page news, the Equal Employment Opportunity Commission (EEOC) experienced a 12% increase in the number of sexual harassment charges received.
Last year, retaliation— the act of treating an employee (or job seeker or former staff) less favorably for reporting, testifying to or speaking out against harassment or discrimination — was by far the most frequent complaint filed at the Equal Employment Opportunity Commission. There were about 40,000such complaints.
At OneDigital, a national employee health and benefits manager, we see firsthand that employers are more exposed to risk from retaliation, discrimination and harassment claims than ever before. Last year, the commission settled more than 90,000 of these cases, securing more than $500 million for victims. When we hear clients say their enterprise is too small, even close-knit, to suffer such liability, or that they’re covered by an explicit harassment prohibition in company policy, we point out that neither addresses a complianceprocesswhen situations “escalate,” as commission filings suggest they often do. It’s the things employers didn’t see coming that are especially damaging.
As human talent professionals, we know compliance must be a multi-step, proactive evolution, and one we also position it as a target deliverable — not one advanced solely by indemnity or fear. (More on that in a moment!)
The Equal Employment Opportunity Commission offers employers guidance on compliancewith federal discrimination and harassment protections. There are five core principles that have been practical and effective at mitigating risk and, at OneDigital, we say makes harassment and discrimination compliance a value-addedinvestment.
- Engaged leadership Staff are stakeholders in any business’s success, and creating a committed and reliable harassment- and retaliation-free workplace begins at the top.
- Strong policyIt’s to the employer’s advantage not only to speak compliance but demonstrate appreciation of the risk. Put a policy in place. Mitigating against an EEOC filing is a part of risk management.
- Consistent accountability When a claim is made, an employer is duty-bound to investigate it. As personnel professionals, we advise that the consequences should be proportional and consistent, not situational, because harassment and discrimination, big or small, must run counter to company culture as it runs counter to the law.
- Trusted complaint procedures Employees should know and feel they have a trusted place to go in the event they have a complaint. This contact can and should be a human resources professional; it may also be a hotline.
- Training! A lot of very large employers, like the University of Arkansas System, have made workplace harassment training mandatory for managers and staff. Part of this training positions bystandersas an identifiable party with agency. What should we do in the event we witness a colleague harassed or discriminated against?
When employees complain about discrimination or harassment, employers must ensure workers are heard and their claims addressed. Businesses may face liability even if the claim is unproven. Such charges may trigger costly new legal counsel, time away from business for hearings or meetings, and budget uncertainty that affects future business planning. According to a Small Business Association report, litigation for small employers can range from a few thousand dollars to $150,000. And while the legal burden for retaliation is causation, any action an employer takes that is adverse to the complainant — even inadvertent ones such as rescheduling shifts — has proven convincing.
Besides, there’s personnel fallout. Today’s highly skilled workplaces, in the age of employer review sites such as Glassdoor and Indeed, may struggle to attract talent after they develop a reputation for having staff complaints and high turnover. A 2018 Conference Board CEO study found that attracting and keeping talent may be business leaders’ top concern — greater even than business model disruption or competition.
The good news is compliance discussions, procedures and training can boost confidence, quash misperceptions and raise morale. Communicating to managers that their duties include proper modeling for subordinates fosters leadership. Demonstrating zero tolerance for harassment and discrimination along with strong complaint resolution practices will be a public relations asset.
Human resource professionals consider compliance an issue as complicated and rewarding as the staff we serve, and at OneDigital, we look forward to attending the 18th Employee Law and Legislative Affairs conference Sept. 26-27 and discussing this further. Ours is a profession that acts on strategic deliverables, and in the Digital Age, talent retention and employee rights are proactive, not reactive management aims.
Compliance isn’t a legislative line item. It’s a bottom-line item.
WHAT: The 18th annual Employee Law and Legislative Affairs conference, hosted by the state Society for Human Resource Management
WHEN:Sept. 26-27 at the DoubleTree Hotel and Robinson Center, Little Rock
WHO: About 300 human resource directors and managers, lawyers, legislators and others
CONTACT: Director Tim Orellano, chair, at (501) 227-9373, or [email protected]
Tamara Kent is a senior client executive in OneDigital’s Northwest Arkansas office where she works with employers large ([name]) and small ([name]) all across the region. An employee benefits executive, her consideration of compliance issues comes from the same firsthand experience that Human Resource professionals face every day.