Since September, harassment allegations and lawsuits have made headlines almost daily, claiming the careers of one high-profile leader after another and opening the eyes of many to the pervasiveness of sexual harassment and misconduct in the workplace. Outside of the headlines, employers of all industries are seeing an uptick in claims of harassment. USA Today recently reported an increase in employees bringing outside attorneys into the conversation with their employers, and EEOC is reporting a rise in sexual harassment charges against employers in just the last few months. (See Heidi Przybyla, ‘Weinstein Effect’ is Boosting Inquires about Workplace Harassment, USA Today, Nov. 14, 2017.) This wave of employee empowerment has been dubbed the “Weinstein Effect.”
With the increased dialog regarding potential harassment in the workplace, it would be naive to think the “Weinstein Effect” will spare the federal contractor community. While all employers face risk of an EEOC complaint, private lawsuit, or public proclamation, federal contractors face additional risks due to routine and ongoing scrutiny by OFCCP.
As such, contractors who wish to stay ahead should understand the current trends and be aware of their obligations under OFCCP’s regulations.
The Basics
Sexual harassment is considered employment discrimination on the basis of sex. Title VII prohibits it. It is traditionally classified as either “quid pro quo” (a “this for that” exchange for professional advancement) or “hostile work environment.” Importantly, an employer may be responsible for its employees’ sexual harassment of other employees – and can be strictly liable for any sexual harassment by its managers and supervisors.
The EEOC defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.” This includes remarks about a person’s sex (or gender) in general and may include comments involving sexual orientation or sexual stereotyping. And, while often overlooked, sexual harassment can be perpetrated by men against women, by women against men, or against a person of the same gender.
What Do OFCCP’s Regulations Require?
Under Executive Order 11246 federal contractors must be proactive about ensuring equal employment opportunities and anti-discrimination. They cannot wait for a lawsuit or complaint. OFCCP is charged with enforcing these proactive obligations through compliance reviews.
According to OFCCP’s updated Sex Discrimination Guidelines of 2016, “harassment on the basis of sex is a violation of Executive Order 11246.” (41 CFR 60-20.8). OFCCP’s Compliance Manual also specifically instructs Compliance Officers to investigate sexual harassment during a review, including ensuring that the contractor has implemented a policy against sexual harassment. (Federal Contractors Compliance Manual §§ 2H01(d), 1H05). Well before the “Weinstein Effect”, OFCCP was asking questions about sexual harassment in interviews of employees and during onsite investigations. We can now expect this federal watchdog will make an increased push in 2018 and as victims continue to find the courage to speak up and say, #MeToo.
Like most employers, contractors are prohibited by Title VII of the Civil Rights Act of 1964 from permitting sexual harassment that is severe and pervasive. But under OFCCP’s new Sex Discrimination Guidelines, contractors must also be able to demonstrate to OFCCP that they are engaging in the required activities, even in the absence of employee complaints. As discussed above, the Agency holds contractors to a higher standard – a proactive standard – in compliance reviews.
Underscoring the expectation of proactive efforts, the Agency’s Sex Discrimination Guidelines list “best practices” to prevent sexual harassment, including: “(a) Communicating to all personnel that harassing conduct will not be tolerated; (b) Providing anti-harassment training to all personnel; and (c) Establishing and implementing procedures for handling and resolving complaints about harassment and intimidation based on sex.” (41 CFR 60 20 (appendix pt. 7(a) (c))).
The first response by employers to these “best practices” might be, “these are suggestions, not requirements!” This is true. But these suggestions dovetail with basic AAP compliance requirements, such that implementing them is strongly recommended – if not unavoidable – to demonstrate compliance.
Indeed, as a part of completing a yearly affirmative action plan, contractors must implement an Equal Opportunity policy statement forbidding discrimination (including harassment) on the basis of, among other protected characteristics, sex (41 CFR 60 1.4(a)(1)), and retaliation for making a complaint about such discrimination (41 CFR 60 1.32). Additionally, contractors must reinforce their anti-harassment position by conspicuously posting EQUAL EMPLOYMENT IS THE LAW poster (and supplement) in their establishments for review by employees and applicants. (41 CFR 60-1.4(a)(1)).
What is more, contractors need to ensure their workforce is being adequately trained on recognizing and preventing sexual harassment. Contractors should retain documentation of training events and copies of the training materials along with other OFCCP-readiness items. The company should also keep records of trainee attendance in employee personnel files.
Lastly, OFCCP suggests contractors establish a process for handling and resolving complaints about sex harassment and intimidation. As a best practice, employers should review their existing procedures to ensure they are current and provide for expediency, uniform action, and confidentiality.
Reacting to the current cultural moment, it is likely that OFCCP will take an even closer look at contractors’ affirmative efforts to prevent sexual harassment in the workplace. In this light, many – if not all – of the Sex Discrimination Guideline’s “suggestions” may not prove to be as optional as their “best practices” title suggest.
How to Prepare for Agency Scrutiny
Simply put, develop policies, train your workforce, promptly investigate any complaints, and document everything.
Applicable regulations require that employers take steps to develop policies and train on harassment prevention. After all, employers can only act through their managers and supervisors. If the recent “war stories” of sexual misconduct suggest anything, it may be that many employees simply cannot recognize (in)appropriate work behavior. Teach them how (not) to act. Empower them to raise concerns. Protect them when they do.
But, in the OFCCP context, documentation is also required. The Agency is increasingly requiring verifiable contemporaneous documentation during audits. OFCCP expects employers to demonstrate that they had (and followed) a corporate policy during the review period; their ongoing dedication to training; and that employee complaints were properly investigated and resolved. To be clear, the regulations do not plainly require each and every one of the above items; but a robust and documented training program will more easily pass muster in an OFCCP compliance review.
Recent media attention confirms that even company founders and high-ranking executives can engage in improper sexual harassment and can benefit from anti-harassment training. 
Other employers are creating dedicated channels to encourage employees to confidentially voice concerns and empower them with the knowledge that the company will support them. Employees cannot notify management of potential sexual harassment if they don’t know the procedure, and will not do so if they believe they will be challenged or ridiculed for it: especially when the alleged perpetrator is a powerful figure in the organization.
Still other employers are evaluating the risks and benefits of disclosing information regarding the number of recent complaints the employer has received, the resolution of those investigations, and any corrective actions taken.
While each company’s actions may be unique, their mission is the same: to change the way the workforce thinks about sexual harassment and appropriate workforce behavior. Each of these approaches shows the contractor cares about and is taking proactive steps to eliminate workplace discrimination—just as EO 11246 requires.
Indeed, employers who can demonstrate that they exercised reasonable care to prevent and promptly correct harassing behavior may have a defense to sexual harassment liability under Title VII and OFCCP’s Sexual Harassment Guidelines.
Conclusion
In the current climate, having bulletproof anti-harassment policies and procedures in place is crucial for government contractors seeking to minimize OFCCP liability, streamline their audits, refine workplace culture, and enhance their corporate image. As federal contractors enter 2018, wise New Year’s resolutions include ensuring that anti-discrimination policies are up to date, arranging sexual harassment trainings for all employees, and committing to a dedicated and confidential complaint procedure.
OFCCP is likely to increase its scrutiny in this red hot area. These actions will help prepare for audits not just by OFCCP, but also the scrutiny of other governmental agencies and future plaintiffs – and avoid negative #MeToo publicity.
To learn more about best practices in equal employment opportunity, EEO pay analyses, OFCCP compliance, and audit defense, contact Chris Patrick at 303-876-2202 or christopher.patrick@jacksonlewis.com or James Mackey at 303-225-2411 or james.mackey@jacksonlewis.com.
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