New Digital Platforms: Answer To Workplace Harassment?

Some interesting things have come out of the recent public meeting of the EEOC’s Select Task Force on the Study of Harassment in the Workplace (“STF”), where workplace experts testified.

I found three points most compelling, one of which was novel to me.

Office, Freelancer, Computer, Business

The EEOC was told that “new digital platforms may provide meaningful ways to communicate within workplaces about unacceptable and potentially harassing workplace behaviors,” especially among millennials.

This was new and interesting to an old school guy like me, and gave me a lot to think about.  But can anyone who is a millennial weigh in on this subject and let us know the ways in which this could be a useful tool?

With respect to disability harassment, “obvious disabilities may give rise to playground type taunts and mocking; while hidden disabilities may result in intrusive medical questions or gossip and innuendo based on myths, fears, and stereotypes.”

I have done a lot of posts on the “perception of disability,” and on myths, fears, and stereotypes related to disabilities – so this is no surprise to me.  Employers cannot discriminate against employees by using concerns about their health or safety.

The exemplary cases are many.  I wrote about an EEOC lawsuit filed under the ADA which alleged that an offer of employment to a machinist with epilepsy was withdrawn, the company citing fears for the applicant’s safety “should he have a seizure.” A while ago on an ADA lawsuit was brought on behalf of an employee who was fired because she had a prosthetic leg and the employer “did not want anyone bumping into her.”  I also wrote about an employer who fired a pregnant housekeeper because “it could not allow her to continue to work as a housekeeper because of the potential harm to the development of her baby.”

And in another case, the EEOC sued an employer on behalf of a mechanic who developed endocarditis, who was fired because “[g]iven the nature of  [his] job as a Sheet Metal Mechanic, it is too risky to allow [him] to return to [his] previous line of work.”

Enough said on that topic.

Finally, the EEOC panel was told that courts “often do not take age-based harassment seriously. Remarks that would be considered creating a hostile environment under other bases such as race tend not to be considered as severe when they involve age.”

Another true statement.  My guess is that there are more cases excusing “stray remarks” when it comes to age discrimination, than to other types of discrimination.

And this is a topic in which I have probably written more than any other – code words or other ways in which ageism is expressed. I recently encouraged employers to learn from real life cases of ageist comments to stay away from words or comments that may be understood as being proxies for “old.”

I chided employers who are used to making, or excusing, ageist comments because they have, as the EEOC has said, “outdated prejudices and biases.”  For example, I said that you do not call an employee “old” or “ancient,” and you stay away from calling an employee “old school,” or “set in his ways,” or “not a proper fit for the “new environment,” or “lacking in energy.”  Avoid “Hang up your Superman cape and “get it together you f….ing old people.” And like a bag of bones – not good.

All in all, an interesting agenda.

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]