On January 10, 2017, the Equal Employment Opportunity Commission (“EEOC”) sought public comment on its Proposed Guidance on Workplace Harassment. The Public Comment period ends on March 21, 2017. It is important to note that the new Guidance does not carry the force of law; however, it is informative as to how the EEOC will analyze and investigate charges filed with the agency.
The 75-page Guidance sets out to provide the EEOC’s view on the scope of workplace harassment claims, the EEOC’s interpretation of harassment law, and the EEOC’s recommendations for the prevention of workplace harassment. Below are some of the key points:
Types of Workplace Harassment: The EEOC Proposed Guidance states that unlawful harassment may be found when based on an individual’s:
- Race, color, or national origin
- Genetic information (of the individual or family member)
- Sex (includes pregnancy, sexual orientation, gender identity, and gender stereotyping)
Liability for Unlawful Harassment: The EEOC recites familiar legal standards for liability. An employer will be held liable where:
- Harassment based on an employee’s protected status results in a material change in the terms and conditions of employment (e.g., terminating an employee who refused the sexual advances of a supervisor);
- An employee demonstrates that conduct of the harasser was objectively hostile or abusive and the employee subjectively believed the conduct to be hostile or abusive; or
- An employee must establish that the employer was negligent by either failing to act to prevent harassment by a non-supervisor or failing to take reasonable measures to correct harassment as to which the employer knew or reasonably should have known.
Importantly, the EEOC takes the position that an employer may be liable for the workplace harassment of an employee by a non-employee such as a customer or independent contractor. The EEOC also protects employees from harassment based on the perception of the employee’s membership in a protected class regardless of the employee’s actual protected class status.
Workplace Harassment Prevention: The EEOC sets forth recommendations for avoiding liability for unlawful harassment in a section entitled “Promising Practices.” The final section of the Guidance provides useful information for employers regarding preventative measures the EEOC will evaluate when investigating a charge of unlawful harassment.
- Culture of Anti-Harassment from Leadership: The EEOC emphasizes that senior leadership should allocate sufficient resources to evaluate and mitigate the risk of workplace harassment.
- Anti-Harassment Policy: The EEOC recommends that all employers have a written anti-harassment policy that is clear and easy to understand. The policy should state unequivocally that workplace harassment will not be tolerated.
- Complaint & Investigation System: In concert with the anti-harassment policy, the EEOC suggests that the complaint process welcome reporting, treat victims and witnesses with respect, ensure employees are not subjected to retaliation for participating in the complaint and investigative process, and maintain appropriate documentation of the investigation.
- Anti-Harassment Training: The Proposed Guidance provides that regular and comprehensive training are essential to maintaining a harassment-free workplace. The EEOC states that effective anti-harassment training should provide descriptions of unlawful conduct, inform employees of their rights and responsibilities, explanation of the complaint process, and outline the consequences of engaging in harassing behavior.
We will keep you apprised of any further developments regarding the EEOC’s Proposed Harassment Guidance. Employers should contact our Employment Law Group if you have questions regarding the EEOC’s Proposed Guidance.