U.S. Equal Employment Opportunity Commission
Commissioner Feldblum, Commissioner Lipnic, members of the Task Force, good afternoon. I am Heidi-Jane Olguin, President and CEO of Progressive Management Resources, Inc. For twenty years, I have specialized in compliance issues, monitoring consent decrees and settlements involving discrimination and harassment in Fair Housing, Public Accommodations and mostly important to today's testimony, Employment. Included in my written testimony is a list of the cases in which my firm was selected to server as a neutral third party to implement and oversee injunctive relief including assessing and reporting on compliance. We have monitored four EEOC consent decrees which all involved harassment and lasted between 2-4 years, with one being extended an additional year due to compliance concerns. We have also served as an independent consultant to multiple organizations in an effort to remedy employment harassment concerns that did not rise to litigation.
Based on my experience, I have selected a handful of promising practices that we have seen make a difference in organizations that were in very serious trouble. As you will notice with many of these practices, there is a multi-level impact: the practice or protocol itself and then perhaps more importantly the message it sends to the organization, and the culture that is then cultivated by that practice.
One of the first practices I'd like to discuss has to do with intake of harassment complaints. We have seen that having a multifaceted system to intake complaints is critical. In addition to the standard options of reporting complaints to managers and HR Departments, we have seen multi-lingual complaint hot-lines and web-based complaint systems make a difference. Frequent communication to all employees regarding complaint filing options is important and can be aided by physically distributing reminders such as pens or magnets that include a complaint hotline number or website address while it might sound trite but it can make a difference. A related practice that we have seen make a difference is to actually test the complaint receipt system at least once year, especially if there is a very low level of complaints. For example, in some of the decrees in which we've worked, an element of the injunctive relief required lodging test complaints to monitor the efficacy of the complaint system and ensure that the correct individuals within an organization were notified.
Secondly, having C-Level involvement is crucial because it sets the tone for the entire organization.
One example is establishing a small internal group of key C-Level personnel that is informed immediately regarding harassment complaints (unless a conflict of interest exists) and updating them regarding investigation outcomes, as well as involving them in prevention analysis can prove to be a very meaningful practice. We have seen the greatest improvement in organizations where top management becomes directly involved in efforts to address harassment concerns. Alternatively, we have seen several instances in which top management was not informed about complaints in a timely manner and by the time they learned about them, it was often too late to effectively correct the negative impact.
Another aspect of C-Level practices that is particularly meaningful is addressing the impact of physical surroundings on the working environment. We recently had a fantastic experience with a CEO on this topic; in the midst of an investigation regarding numerous members of a particular department, the CEO went to the department and looked around, talked with supervisors and noticed that the breakroom where a number of problems were occurring, was being used more like an unsupervised playground. Because of his position of authority, he was able to make the decision to completely reconstruct the room and to re-assign it for an entirely different purpose. This action, by itself, eliminated the opportunity for the behavior that lead to the harassment.
Another example of C-Level practices that make a difference is to celebrate complaints; specifically to celebrate well handled complaints. We had a recent client in which the CEO hosted a department-wide ice-cream social for how quickly and successfully a complaint was handled (now this particular complaint involved a third-party harasser that obviously did not attend the party). Additionally, the same client gave private accolades to either complainants or directors/managers who quickly reported complaints. Actions such as these strongly communicate an openness and willingness to receive and resolve complaints and create a culture that promotes compliance.
Relatedly, and perhaps one of the more important C-Level practices that we have seen make a difference is involvement in management accountability. When C-level employees take a critical look at, and aggressively deal with, manager/supervisors involved in or not adequately reporting on-going harassment, we have seen this translate into higher morale and higher productivity among the rest of the workforce.
Another area of good practice that makes a very big difference is investigations. It is imperative that every organization has either internal or external capacity to conduct timely, thorough, well documented investigations. While this might be considered a basic practice, it is often overlooked by even very large organizations. In every case we have worked on, there were severe deficiencies in the capacity to conduct a good investigation. This starts a chain of events which often results in additional harassment or retaliation: the complaint is not taken seriously or alleged harassers get the message that the status quo is ok and the harassment continues or worsens. However, once we have established detailed investigations protocols and put into place comprehensive investigations training, the improved investigations lead to much more meaningful outcomes that simultaneously act as a deterrent to future harassers, and increase confidence in the workforce that their complaints will be taken seriously and handled effectively. Relatedly, we have found that the use of standardized investigation forms can help ensure consistency and thoroughness of investigations.
Finally one of the most important best practices, at least potentially, is training. Prior testimony paints a mixed picture on the effectiveness of training and we can certainly testify to that. We have seen training programs that range from meaningful and productive to those that are not only unproductive but potentially offensive, possibly even leading to increased liability. In three out of the four employment consent decrees we have monitored, training consultants had to be removed and the training programs had to be rewritten due to inappropriate content - such as encouraging employees to discuss stereotypes in a manner that actually contributed to a hostile working environment. To that end, carefully analyzing the content of any training program is an essential practice.
Conversely, the following is a list of training practices that we have seen make a substantial difference:
Training ALL employees regularly, not just managers, at least every 12-18 months; it is the repeated message that can make a difference
Utilizing live trainers who engage the audience in a way that on-line services cannot replicate
Tailor the training to the participants' specific workplace, utilizing examples and scenarios that realistically involve situations from that work environment
Train in multiple languages as needed
Train employees, managers, and HR separately - to encourage more open participation and to potentially learn about any compliance concerns
And perhaps the most crucial and meaningful training topic that is often over looked is "issue-spotting." Anyone that might be involved with the receipt of a complaint or part of an investigation or simply anyone at a supervisory level needs to be well trained in "issue-spotting." This translates to a reasonable grasp of the law as well as circumstances that can lead to future trouble (i.e., an environment where horseplay is tolerated or encouraged, or where dating or affairs are occurring between co-workers or supervisors). In short, managers and HR employees need to serve as the organization's smoke detector, identifying situations that, while on their face may not rise to a violation, could signify a possible problem that should be looked into. Relatedly, another aspect of issue-spotting is that in the course of many investigations, oth er compliance concerns will come to light and investigators need to follow up on those additional issues, not ignore them as we have seen happen numerous times.
Thank you for inviting me to speak today and I would be happy to answer any questions you may have.
U.S. Equal Employment Opportunity Commission v. McKesson Water Products Company, Case No. 01-09496 FMC PJWx (Sparkletts)
(Employment - Race Discrimination & Harassment)
U.S. DOJ and Jeremiah Stadtlander v. Warren Properties, Inc. Civ. No.09-0237CG-N
The largest settlement ever obtained by DOJ in an individual housing discrimination disability case
(Fair Housing - Disability Discrimination/Reasonable Accommodation Consulting and Training)
U.S. v. Nationwide Mutual Insurance Company; and Nationwide Mutual Fire Insurance Company Civil Action No. C8-97-291
(Fair Housing/Insurance - Race & National Origin Discrimination)
U.S. EEOC v. Landwin Development d/b/a San Gabriel Hilton et al., Case Nos. CV 07-06169 and CV 07-05916
(Employment - Race Discrimination & Harassment)
U.S. EEOC v. ResCom Services, Inc., Case No. CV-01785-WQH-JMA
(Employment - Sexual Harassment)
People of the State of California v. Jani-King of California, Inc., Case No. C 691-473
(Franchise Investment/Unfair Business Practices)
U.S. EEOC v. AHMC Garfield Medical Center
Case No:10-CV-06179-GHK (SJHx)
(Employment - Sexual Harassment)
U.S. DOJ v. Cracker Barrel Old Country Store, Inc.
(Public Accommodations - Race & National Origin Discrimination)
Mould V. Palmdale 112 LTD., et al, Case No.CA 001201 (Los Angeles Superior Court)
(FaIr Housing - Race Discrimination in Rental Housing)
The People of the State of California v. Minh Dev. & MGT, LLC et al., Case No. BC398666
(Fair Housing - Race Discrimination in Rental Discrimination)
Trevino v. Six Flags Theme Park, Inc. LASC No. BC 247 014 (consolidated with additional class action complaints)
(Public Accommodations - Racial profiling)