Almost two weeks ago, the Washington Post published an article detailing the efforts of the U.S. Equal Employment Opportunity Commission to resolve workplace disputes over harassment and discrimination. For past two weeks, the article has been nagging me. Like really, really nagging me.
Out of all the data the Post reviewed, only two percent of the sex, disability, or retaliation cases had a cause finding, meaning the EEOC found cause to believe discrimination or harassment occurred. In race and age cases, the EEOC found cause to believe discrimination or harassment occurred in only one percent of cases. Does this mean that between two and one percent of the people who filed charges of discrimination actually have a case? No. It can’t mean that. What do these numbers mean then?
The idea that “nothing will happen if I complain” is bolstered by these numbers. If any reasonable person who believed they might have a legitimate case of discrimination or harassment read this article, will they still file a charge? Still go through the stress and anguish of telling their story and waiting months and months to find out that the federal agency they turned to has nothing to help them? Probably not.
The argument of “Discrimination has been solved and we don’t have to do anything about it anymore” is also bolstered by these numbers. Yet, most of us know that discrimination and harassment are not solved. Society still has problems with bias and microaggressions that seriously affect our ability to be a just and civil society and definitely, negatively impact our workplaces. Yet, some jackass (yes, I meant to swear) is going to point at these numbers and say, “see, there’s nothing here.”
To give the EEOC some credit, they are heavily overworked, underpaid, and under significant pressure to turn cases over as fast as they can. This means that the easiest thing to do is to try to get some kind of result (note the percentages in the teens for some sort of recovery) and then issue a no cause determination. But the budgetary and staffing woes of EEOC are not the only reasons for these dismally low numbers.
Another reason for these dismally small numbers is the law. The law has set an incredibly high standard for what actually is harassment and discrimination. Employment lawyers joke that that every employer gets one boob grab or one n-word before the conduct is severe and pervasive enough to create real liability. The joke is kinda-sorta funny because it’s kinda-sorta true. An employer is not likely to be liable for discrimination, the microaggressions, the different treatment until it is really bad.
We have two choices. One, we can change the law. Some states are considering lowering the standard, so employees don’t have to meet such high bar to show discrimination or harassment. (California passed this law, and Minnesota is considering it.) By removing the analysis of severe and pervasive, employees may have an easier time proving discrimination or harassment pushing employers to take action sooner when confronted with inappropriate behavior.
Two, we can lower the bar ourselves. We, as employers and HR pros, can set the bar at the level of behavior we are going to tolerate, meaning we can choose not to tolerate microaggressions. We can choose not to tolerate a single boob grab or n-word. We can choose not to tolerate the behavior that so many already believe is intolerable. We don’t have to rush to terminate when communication problems are the culprit, but we can take action more often to make our folks comfortable to be themselves in our workplaces.
This is the thing about the law. It is most often the floor. We can do more. We can say two-percent, shmoopercent. We will look at every situation, every individual, and say, “You will be respected” and actually mean it by our policies, our trainings, and our actions.