This month the Equal Employment Opportunity Commission lit up headlines around the country with a raft of harassment lawsuits aimed at various businesses in various states, including Colorado.
The EEOC on Aug. 9 filed seven harassment complaints in federal courts — five of them involving sexual harassment claims and two alleging race- and national origin-based harassment. One of the lawsuits hit an in-home care provider operating out of Colorado Springs and other cities, and the commission alleged the company retaliated against its employees for complaining about sexual harassment by a client’s son.
Employment law experts say the EEOC’s new litigation push is a sign of the momentum the agency is getting from the #MeToo movement, among other possible factors. The Colorado-based lawsuit, in particular, also highlights for employers a dimension of workplace harassment that they might yet be overlooking despite their attention to these issues.
The defendants in the seven EEOC suits include United Airlines, grocery chain Piggly Wiggly and oil and gas company Murex Petroleum. Five of the suits included a retaliation claim. In each of the cases, the EEOC tried to reach a pre-litigation settlement through its conciliation process.
“Workplace harassment causes serious harm to women and men in all kinds of jobs across the country,” said EEOC Acting Chair Victoria Lipnic in a press release. “When employers fail to protect their employees from harassment, the EEOC may bring legal action to stop the harassment and prevent future harm.”
Given the national conversation about sexual misconduct in the workplace, the EEOC’s harassment lawsuit activity isn’t a surprise, said Victoria Aguilar, attorney and founder of Greenwood Village-based HR consulting firm, The AR Group.
“The #MeToo movement I think is really forcing their hand on these sorts of claims because they’re real, and we’re not past this issue,” Aguilar said. She added that the movement’s “cultural force” will continue to embolden more employees to make harassment claims in the short term, and the EEOC will be driven to pursue many of those claims. What the new harassment lawsuits seem to share, Aguilar said, is strong facts that grab headlines.
The EEOC claim against JoyVida LLC, which does business in Colorado as Amada Senior Care, alleges that the company subjected two female employees to repeated harassment from a client’s son. The women complained to their employer that they experienced “pervasive unwelcome conduct, including unwelcome touching of their breasts and buttocks and derogatory sexual remarks” and that the client’s son exposed himself to the women and touched them with his genitals, according to the EEOC.
The commission said that instead of investigating the employees’ complaints, Amada retaliated by cutting their hours, eventually firing one of them and reassigning the other to the same client’s home where she continued to experience a hostile work environment until she quit.
For many employers, the claims against Amada represent a type of sexual harassment scenario that might not be on their radar, Aguilar said. Even employers who are focused on protecting employees from sexual harassment by their peers often don’t apply that same vigilance to how those employees are being treated by customers or vendors.
“I don’t think enough employers understand the real liability that can result from that,” Aguilar said. It’s an issue she raises with clients when she conducts harassment prevention trainings for them, particularly with her craft-brewing clients who deal with drinking customers in their taprooms. The EEOC expects employers to protect workers from harassment at the hands of third parties as well as their colleagues, but it can be a sensitive situation when the source of the misconduct is a paying customer.
“When your clients are the very ones that are driving your revenue and creating the hostile work environment … that creates a sort of conundrum,” Aguilar said, adding that employers don’t always call legal counsel to help walk them through that tricky situation.
Amy Miletich, a Denver-based attorney who litigates and counsels on employment issues out of her firm, Miletich PC, said the #MeToo movement could be driving the increase in the federal government’s harassment suit filings, but there could be other factors at play — like timing. The federal fiscal year ends next month, so the EEOC may be filing this many complaints partly to boost its numbers for the year and reflect more activity. But that won’t be clear until the final numbers of merit lawsuits filed for FY 2018 come out, Miletich said.
Also, the EEOC is working off a $16 million funding boost it received from the spending bill Congress enacted in March, Miletich pointed out. Lipnic said in a statement at the time that her agency would “use these additional funds judiciously to enhance the agency’s work — especially as to harassment prevention.”
With more funding and national attention on harassment issues, government agencies from the EEOC to the Colorado Civil Rights Division seem to be pursuing those claims more vigorously now, Miletich said.
“We are seeing much more activity by the agencies with respect to investigations,” she said. Where it used to be common for harassment cases to die out or get dismissed after the employer files a position statement, she’s seeing agencies take more of them further, following up with supplemental requests for information and onsite interviews with employees.
The harassment litigation appears to be only one facet of an ongoing focus the EEOC is placing on workplace harassment matters. The EEOC Select Task Force on Harassment met June 11 to hear public testimony on workplace harassment prevention. Attorneys and academics representing both sides of employment offered testimony on topics ranging from employers’ use of non-disclosure and arbitration agreements to harassment prevention training.
A task force co-chair acknowledged that the #MeToo movement helped propel the EEOC’s efforts on harassment enforcement.
“Our challenge is to use this #MeToo moment well,” said Commissioner Chai Feldblum at the meeting. “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.”
The meeting marked the two-year anniversary of the task force’s June 2016 report, which called for employers to “reboot” their harassment prevention policies. 
According to the report, employers’ anti-harassment trainings and policies often focus too much on avoiding litigation as opposed to creating a harassment-free environment. In the report, the EEOC task force laid out recommendations for more effective harassment prevention measures, including workplace civility and bystander intervention training.
Since the report was released, the EEOC launched its “Respectful Workplaces” training program that it said has conducted more than 200 trainings in 18 states.
— Doug Chartier