EEOC SELECT TASK FORCE ON HARASSMENT HEARS FROM EXPERTS ON HOW TO PREVENT WORKPLACE HARASSMENT

WASHINGTON — The U.S. Equal Employment Opportunity Commission’s (EEOC) Select Task Force on the Study of Harassment in the Workplace reconvened today to hear from expert witnesses on “Transforming #MeToo Into Harassment-Free Workplaces” at a meeting open to the public.

“Our co-chairs’ report on harassment laid the groundwork for the launch of a renewed effort to prevent harassment,” stated Acting EEOC Chair Victoria A. Lipnic. “Since last fall, the public’s demand for action has coalesced with this effort. The EEOC will continue to lead the fight against workplace harassment and to promote solutions to prevent it.”

EEOC Commissioner Chai R. Feldblum added, “Our challenge is to use this #MeToo moment well. We have a road map given the work we have done at the EEOC. We have the attention and commitment of the range of different actors in society that we need. Together, we can channel that energy to create significant and sustainable change.”

Legal scholars and attorneys who represent workers and employers highlighted a range of issues raised in the wake of high-profile allegations of sexual harassment since October 2017 and the rise in the #MeToo and #TimesUp movements. These experts discussed non-disclosure and arbitration agreements and training mandates, and shared proposals for legal reform from state legislatures and industry groups, who have taken up action to address sexual harassment in the workplace.

Elizabeth Tippett, a professor at the University of Oregon School of Law, provided an overview of a range of legal issues and noted the importance of also addressing other forms and aspects of harassment. “It would be a mistake for employers and state legislators to limit their response exclusively to sexual harassment,” Tippett said. “In doing so, they risk laying a foundation for the next crisis, whether it involves other forms of harassment, or discrimination and retaliation.”

Debra Katz, a partner with Katz, Marshall and Banks, said, “#MeToo movement forces society to see the gaps between the promises of our politicians and lawmakers and the realities of individuals, face to face in the workplace.” Katz outlined how Title VII and state laws have been thwarted for too long by evasions that the legal system itself has sanctioned. “#MeToo illustrates the immense cost of that failure,” Katz noted.

Kathleen McKenna, a partner at Proskauer Rose, who represents employers, testified that arbitration provides a neutral and confidential process to resolve individual harassment complaints for conduct that employers “invariably prohibit and work to guard against.” McKenna also explained that proposals to prohibit non-disclosure agreements are likely to be counterproductive, as that could lead to an increase in litigation rather than private resolution.

Suzanne Hultin with the National Conference of State Legislatures testified that over “125 pieces of legislation have been introduced this year in 32 states.” Hultin noted that many states are looking to go beyond federal regulations to prevent workplace sexual harassment. She projected that proposals to address and prevent harassment would continue to be a priority for state legislatures this year and next.

A second panel presented innovative strategies that employers, unions, and others have developed to promote workplaces free of harassing conduct.

Jill Geisler, a fellow with the Newseum’s Freedom Forum Institute, described the Power Shift Project, a solutions-based effort about what newsrooms and media organizations are doing to deal with emerging cases of sexual misconduct, and what systemic changes are needed to end harassment and promote opportunity for all. While discussing the Power Shift Summit, the kick-off event for the project, Geisler described “a sense of new urgency and serious commitment among participants to fix these problems and create meaningful, sustainable change.”

Kasey Nalls, a member of the union UNITEHERE, described the “Hands Off Pants On” campaign that was spearheaded by UNITE HERE Local 1 and the Chicago Federation of Labor two years before the #MeToo movement exploded last fall. The initiative helps protect hotel workers from sexual harassment and assault by guests and an ordinance adopting it was unanimously passed by the Chicago City Council in October 2017. “Since the anti-sexual harassment policy went in to effect in January 2018, we’ve observed a chipping away at culture that permeates the hospitality industry that the “‘guest is always right,’” said Nalls.

Erin Wade and her staff at a restaurant called Homeroom developed a simple color-coded system for wait staff to use to signal if they confront harassing conduct from a customer, which then triggers a specific, mandated action by the manager to handle the situation. Wade emphasized that “We need to listen to the suggestions of women for how to solve the problems plaguing them, and put them in the position to change their own worlds.” She reported the success of this system as customer harassment is no longer a significant problem and the system has created a safe workplace for staff.

Jess Ladd, founder and CEO of Callisto, testified about her non-profit’s online documentation and reporting platforms in which the first report of a harassing incident creates a “matching escrow” that allows victims of sexual harassment to hold their identities in escrow until another victim of the same harasser comes forward. The second report triggers both victims being put in touch with the same Callisto legal advocate. “Callisto Expansion is designed to help victims understand the full range of their options, from HR to police to the press to the EEOC to confronting their perpetrator. We help victims understand which of these options they can pursue, given their case and the case of linked victims,” Ladd testified.

Lisa Gelobter, CEO and co-founder of tEQuitable, has created an independent, confidential platform to address issues of bias, discrimination and harassment in the workplace. She said that tEQuitable has built a third-party, tech-enabled Ombuds program, which “is the only platform implementing solutions to proactively stop harassment, not just reactively catch harassers after the fact.”

The Select Task Force, co-chaired in 2015 and 2016 by EEOC Commissioner Chai R. Feldblum and Commissioner and now-Acting Chair Victoria A. Lipnic, consisted of representatives of academia and social science; legal practitioners on both the plaintiff and defense sides; employer and employee advocacy groups; and organized labor. Co-Chairs Feldblum and Lipnic released a report based on the work of the task force on June 20, 2016. The report includes recommendations regarding leadership, accountability, policies and procedures, training, and developing a sense of collective responsibility.

As a result of the co-chairs’ report, the EEOC developed an innovative training program called Respectful Workplaces that has been provided in over 200 training sessions to over 5,200 employees and supervisors in 18 states. Since June 2016, when the report was released, the EEOC has also con-ducted about 2,700 outreach events related to harassment, reaching approximately 300,000 individuals.

The Task Force heard from the following witnesses during the meeting:

• Elizabeth Tippett, University of Oregon School of Law
• Debra Katz, Katz, Marshall & Banks
• Kathleen McKenna, Proskauer Rose
• Suzanne Hultin, National Conference of State Legislatures
• Jill Geisler, Power Shift Project, Freedom Forum Institute
• Kasey Nalls, UNITEHERE
• Erin Wade, Homeroom Mac & Cheese
• Jess Ladd, Callisto
• Lisa Gelobter, tEQuitable

The written statements of the witnesses are available at www.eeoc.gov.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

CSX TRANSPORTATION TO PAY $3.2 MILLION TO SETTLE EEOC DISPARATE IMPACT SEX DISCRIMINATION CASE
Railroad to Cease Challenged Physical Abilities Testing, Federal Agency Announces

HUNTINGTON, W.V. – CSX Transportation, Inc. (CSXT) will pay $3.2 million and furnish other relief to settle a company-wide sex discrimination lawsuit filed by the U.S. Equal Employment Oppor­tunity Commission (EEOC), the federal agency announced today.

According to the EEOC’s lawsuit, CSXT conducted isokinetic strength testing as a requirement for workers to be hired for various jobs. The EEOC said that the strength test used by CSXT, known as the “IPCS Biodex” test, caused an unlawful discriminatory impact on female workers seeking jobs as con­ductors, material handler/clerks, and a number of other job categories. The EEOC also charged that CSXT used two other employment tests, a three-minute step test seeking to measure aerobic capacity and a dis­continued arm endurance test, as a requirement for selection into certain jobs, and that those tests also caused an unlawful discriminatory effect on female workers.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sex, including the use of tests that are administered to all applicants and employees regardless of sex but that cause a discriminatory effect or impact on persons of a particular sex or any other demographic category. Employers using such tests must prove that those practices are necessary for safe and efficient perform­ance of the specific jobs for which the tests are used. Even if this necessity is proven, such tests are prohibited by Title VII if it is shown that there are alternative practices that can achieve the employers’ objectives but have a less discrimin­atory effect.

The EEOC originally filed the lawsuit (U.S. EEOC v. CSX Transportation, Inc. Case No. 3:17-cv-03731) in U.S. District Court for the Southern District of West Virginia in Huntington on Aug. 1, 2017. The EEOC and CSXT agreed to settle the EEOC’s disparate impact claims before any ruling by the federal court. The EEOC did not allege any intentional discrimination by CSXT in this case.

The consent decree settling the EEOC’s lawsuit, which has received approval by the federal court, requires CSXT to cease the physical abilities testing practices that the EEOC charged were causing a disparate impact against female workers. The decree also requires CSXT to pay $3.2 million into a settlement fund to pay lost wages and benefits to a class of women in over 20 states who were denied positions because of the testing. Under the decree, CSXT must also retain expert consultants to conduct scientific studies before adopting certain types of physical abilities testing programs for use in its hiring.

“We commend CSX Transportation for working collaboratively with the EEOC to address our concerns about the railroad’s physical abilities testing program,” said EEOC Regional Attorney Debra M. Lawrence. “The company’s willingness to confer with the EEOC about the agency’s concerns and its agree­ment to cease the testing practices at issue reflect a corporate commitment to gender diversity and inclu­sion that will benefit both workers and the company.”

EEOC Pittsburgh Area Office Director Roosevelt Bryant said, “Railroad and other transportation occupations provide excellent career opportunities for women when sex-based barriers to their participa­tion in those jobs are removed. The EEOC is committed to ensuring that all workers have an equal oppor­tunity for hiring and advancement in such work.”

EEOC District Director Jamie R. Williamson said, “The EEOC will continue to carefully examine employer testing and screening practices to identify those that operate as systemic barriers to employment based on protected characteristics. Workers who believe they are being subjected to the discriminatory effects of such practices should bring them to the attention of the EEOC.”

Eliminating barriers in recruitment and hiring, especially class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women and persons with disabilities, is one of six national priorities identified by the Commission’s Strategic Enforcement Plan.

According to company information, CSX Corporation, together with its subsidiaries based in Jacksonville, Fla., is one of the nation’s leading transportation suppliers. CSX’s principal operating company, CSX Transportation, provides an important link to the transportation supply chain through its approximately 21,000 route-mile rail network, which serves major population centers in 23 states east of the Mississippi River, the District of Columbia and the Canadian provinces of Ontario and Quebec. CSX serves more than 70 ocean, river and lake ports along the Atlantic and Gulf Coasts, the Mississippi River, the Great Lakes and the St. Lawrence Seaway. CSX also serves thousands of production and distribution facilities through connections to more than 240 short line and regional railroads.

The lawsuit was commenced by the EEOC’s Pittsburgh Area Office, one of four component offices of the agency’s Philadelphia District Office. The Philadelphia District Office has jurisdiction over Pennsylvania, West Virginia, Maryland, Delaware and parts of New Jersey and Ohio. Attorneys of the Philadelphia District Office also prosecute discrimination cases in Washington, D.C. and parts of Virginia.