Excerpted from a Duane Morris LLP Blog by Jonathan A. Segal

On October 2, the Equal Employment Opportunity Commission proposed updated Enforcement Guidance on Harassment in the Workplace. Employers have until November 2, to submit comments in response.

While the EEOC may make some clarifications in response to the public comments, it is not likely that they will make material changes. So now is a good time to digest and operationalize the proposed guidance.

Protected Characteristics

The proposed guidance covers not only sexual harassment but also harassment based on any other protected characteristic under Title VII or any federal law. Many employers’ prevention programs focus mostly on sexual harassment and not on other kinds of harassing conduct, such as race and disability harassment. The guidance can be very helpful with any necessary recalibration to avoid the reality and/or appearance that harassment on account of characteristics other than sex is just an afterthought.

Types of Prohibited Conduct

The proposed guidance, which includes 350 footnotes, is rich with examples of harassing conduct. The changes to the current guidance, adopted almost 25 years ago, can be divided generally into three categories:

Many harassment prevention programs are stale in terms of content. The proposed guidance can help employers refresh their prevention programs so that they are effective legally and culturally.

Employer Liability Concerns

The proposed guidance addresses employer liability. For example only:

Recommendations in the Proposed Guidance

The proposed guidance also includes specific recommendations for the content of policies, complaint procedures, training, investigations and corrective action.

For policies, complaint procedures and training, the proposed guidance includes many of the recommendations made by the EEOC Task Force on Harassment, which is referenced by EEOC Chair Charlotte Burrows in the EEOC’s press release regarding the proposed guidance. 

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