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.
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:
- First, there are examples based on changes to the law. For example, in light of the U.S. Supreme Court’s decision in Bostock v. Clayton County, the proposed guidance includes examples of harassment based on LGBTQ status, such as misgendering.
- Second, the proposed guidance emphasizes the application of the law to remote work, for example, racial or other harassing comments in the context of video conferencing.
- Third, the proposed guidance addresses contemporary examples of harassment, for example, workplace antisemitism.
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:
- The proposed guidance includes examples of conduct or use of certain well-known offensive derogatory language, for example regarding race, religion or gender, that is so severe that one incident may be sufficient to create a hostile work environment, particularly when utilized by a supervisor to a subordinate. This is relevant for employers deciding upon the level of appropriate corrective action. Also relevant in deciding upon corrective action (but not addressed in the proposed guidance) is the reality that a number of states (such as Colorado) and cities (such as New York City) do not require that the conduct be severe or pervasive to be actionable.
- The guidance mirrors case law that imposes a lower threshold for employer liability when the wrongdoer is a supervisor. So, when employers consider who they want to be a supervisor for NLRB purposes, they also need to consider the potential implication in terms of harassment (and other) liability, too. What is helpful under some contexts under the NLRA, may be harmful under others when it pertains to Title VII.
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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