Think Harassment Claims Are Old News? Think Again. EEOC Releases Proposed Harassment Guidance
Fast Facts:
The Equal Employment Opportunity Commission’s (EEOC) proposed harassment guidance is in public comment period, which will end Nov. 1, 2023.
Harassment can occur anywhere – including online, and on personal social media accounts, and harassment based on gender, including misgendering someone is illegal.
The focus of the guidance appears to be on properly training employees, particularly supervisors, and ensuring employers, particularly supervisors know how to recognize and stop harassing behavior as soon as possible.
Employers should ensure they have effective anti-harassment policies and programs in place, including adequate investigation procedures.
Harassment Remains an Issue for Employers
Just this month, an actress filed suit against, among others, her agents and two of Harvey Weinstein’s employers for failing to supervise him, leading to his prolific sexual exploitation of actors. Another lawsuit filed this month alleges that an individual was fired from his cybersecurity software job after raising concerns about the company’s alleged “frat boy culture,” including sexual harassment and pay issues. A third lawsuit filed this month against a major network by a former producer alleges the culture there was one of “sexism and misogyny” and claims she was fired for alleged harassment while the network ignored “far more egregious misconduct” by male employees. Harassment issues are very much still alive, and employers need to be vigilant to prevent such issues from festering in their workplace.
EEOC Recently Released Proposed Guidance on Harassment
With that backdrop in mind, at the end of September 2023, the EEOC released proposed guidance for harassment claims. The EEOC is accepting public comments on the document until Nov. 1, 2023. Indeed, the guidance itself notes that threats of workplace harassment have not dissipated, stating that between 2016 and 2022, over one-third of the charges the EEOC received were harassment-related.
The guidance is fairly lengthy and summarizes what constitutes harassment, how liability may be imputed to an employer, and how an employer may best prevent such liability. The document includes several examples. Of course, since this guidance was released by the EEOC, it focuses only on what constitutes federal harassment claims, and the standards in certain states like New York, for instance, which no longer requires proof that conduct was severe or pervasive to prove harassment, are not addressed.
What Are Key Takeaways?
Much of the information contained in the guidance is unsurprising – conduct must be based upon a protected class in order to be harassing, and it must be severe or pervasive, which depends upon relevant facts and circumstances of a particular case. However, there were a few takeaways worth noting for employers:
The guidance took time to explain and provide several examples of the expanded definition of “sex” harassment as determined in the Bostock SCOTUS case, including sexual orientation and gender identity. The proposed guidance makes clear that repeatedly misgendering someone or reassigning their tasks to avoid being client facing could be harassment.
In determining whether harassment was severe or pervasive, consideration may be whether the individual being harassed has reason to believe the alleged harasser will be protected from punishment – such as a “highly valued employee” or if the employer failed to previously take action in similar circumstances.
Relatedly, several examples were provided where courts found sufficiently severe behavior based upon a single incident, such as – sexual assault, sexual touching, physical violence or the threat of physical violence, use of hatred symbols — such as a swastika or noose — and use of the n-word.
The proposed guidance took time to explain that certain actions, for instance a discriminatory transfer to a lesser position, could be actionable for two distinct claims: discrimination and as evidence of a hostile work environment.
The proposed guidance emphasized examples of conduct that occurs outside of work that could be harassing conduct, including electronically, and using personal devices and electronic sources, like via email or social media.
The guidance also discusses appropriate actions for employers to take to prevent harassment, including the minimum features an effective anti-harassment policy, process and training should contain. Key takeaways there included:
The proposed guidance underscored educating supervisors to recognize and report harassment immediately (including with regular training tailored to the specific workplace), identifying multiple avenues for reporting harassment and explaining the complaint process, including an explanation of anti-retaliation protections.
The proposed guidance highlighted the hallmarks of an adequate investigation – that it be as follows:
Prompt – noting that even waiting two weeks, in some instances may be too long.
Thorough and impartial – noting that since credibility decisions may need to be made, the individual conducting the investigation should be well-trained for interviewing witnesses and evaluating credibility.
The proposed guidance also touched on adequacy of corrective action, which should be proportional to the misconduct, may require interim action, should not penalize the reporting party in any way, and ensure the action ceases harassment.
The proposed guidance discussed systemic harassment and how corrective action taken with respect to systemic harassment may look different in order to address systemic issues.
The guidance recognized the sometimes competing interests of various employees’ protected classes, noting that a duty of an employer to accommodate a religion cannot supersede its duty to avoid creating a hostile work environment to someone else.
What Should Employers Do About It?
Regardless of whether this proposed guidance is adopted, preventing harassment has routinely been a top priority for the EEOC. Highlighted as one of its goals in its current Strategic Enforcement Plan is “preventing and remedy in systemic harassment” – both online and in person. Employers should review this proposed guidance with this in mind. It is likely the EEOC will continue to scrutinize employers closely, and employers should ready themselves to properly respond to any complaints of harassment and lay a foundation in the workplace to avoid even the appearance of harassment, and create an atmosphere that encourages open dialogue.
Some of the main themes of this document were to educate all employees on how to prevent harassment, and particularly supervisors to ensure they know how to recognize, intervene, and report harassment immediately.
Remember: An employer is on notice, and thus has a requirement to take action, for any harassment that any of its supervisors become aware of. Properly training supervisors can avoid harassment claims before they start. Likewise, properly training employees how to report issues in the workplace, and supervisors how to respond to such reports can avoid employees seeking redress outside of the workplace.
To learn more about the EEOC’s proposal harassment guidance and how to address or prevent harassment issues at your workplace, contact Employment Law Solutions.