Mary Jo O’Neill was among friends when she addressed members of the Phoenix chapter of Arizona Women Lawyers at a recent educational luncheon. O’Neill is an institution in the Arizona legal community. She has served since 2002 as the regional attorney for the Phoenix District Office of the Equal Employment Opportunity Commission (EEOC), with authority over a big chunk of the Mountain West—Arizona, Colorado, New Mexico, Utah, and Wyoming. She joined the EEOC in 1986, the same year the U.S. Supreme Court recognized that Title VII of the Civil Rights Act of 1964 prohibits workplace sexual harassment. She has the long perspective on sexual harassment issues in this state, and suing employers is her “favorite part” of the job.
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O’Neill is optimistic that things finally might change with the #MeToo movement and the downfall of a large number of powerful men. Her presentation included photos of Harvey Weinstein, Bill Cosby, Matt Lauer, Bill O’Reilly, and many others. “It feels a little different to me this time,” she said. She has felt such optimism before, including when Anita Hill came forward in 1991 for the Clarence Thomas confirmation hearings. “That’s when I thought things would change.” But things didn’t change.
O’Neill has examined the available survey data. The most accurate current estimate, in her view, is that 60% of women have experienced unwanted sexual attention, sexual coercion, or sexually crude or sexist comments in the workplace.
A Wave, not a Tsunami
But now, young people coming into workplaces have higher expectations than O’Neill’s (and my) generation had. She shared recent predictions that a “tsunami” of sexual harassment complaints was on the way. Her warning came weeks before the EEOC released preliminary data showing a 12% increase in sexual harassment complaints over the previous fiscal year. (Fiscal year 2018 ended September 30.). There is a rising tide, if not quite a tsunami, based on that data.
O’Neill is heartened by the EEOC’s reboot of its sexual harassment prevention efforts, and she encouraged employers to use the checklists in Appendix B of the EEOC’s 2016 task force report, available on the agency’s website, to assess sexual harassment prevention and investigation policies and practices.
One of the most important things employers can do to squelch sexual harassment is to conduct exit interviews—”real, authentic ones,” according to O’Neill. Another important measure is telling complaining employees about the remedial action you have taken. It’s “dumb, dumb, stupid” to investigate and take action, but not tell the employee who complained what was done to remedy the situation, she said. Reporting remedies shows you’re serious about enforcing your policies against harassment. Everyone knows if you aren’t serious, she said.
Finally, employers shouldn’t stop with investigating the complaints they receive because “there are always other victims,” according to O’Neill. Make sure investigations discreetly probe for other potential victims, she advised.
Yuma Sends Another Hopeful Signal
I hope O’Neill is right to be optimistic that times are really changing and that, as 2019 gets underway, all workplaces (including in Arizona) are becoming safer, healthier, and more respectful because we’re finally moving the needle on sexual harassment.
I can report another hopeful sign from my state. An investigation found credible evidence that former Representative Don Shooter (R-Yuma) had created a hostile working environment at the Capitol, and he was expelled by a 56-3 vote of his colleagues in the Arizona House of Representatives. Defiant, he obtained the signatures of more than 800 constituents to win a spot on the primary ballot.
Shooter’s name will not be on the November general election ballot because he came in last in the three-way primary. Still, more than 5,000 Arizonans voted for him. Hopeful yes, but not unequivocally so.
Dinita L. James is a partner in the Gonzalez Law, LLC law firm in Tempe, Arizona and is an Editor for the Arizona Employment Law Letter. She can be reached at dinita.james@gnzlaw.com or 480-565-6400.