The EEOC’s Proposed New Enforcement Guidance on Harassment

Last month the EEOC published its  proposed new Enforcement Guidance on Harassment. Wait. Didn’t EEOC Commissioners  Chai Feldblum and Victoria Lipnic present a Report of the Co-Chairs of the Select Task Force on Harassment in the Workplace  (“Harassment Prevention Report”) last year? Yep. I previously posted about that Report here.  You may remember from my post that it was quite thorough. So what’s left to cover in an Enforcement Guidance?  The Report contains findings and suggestions. The Enforcement Guidance clarifies the EEOC’s position on and interpretation of how Title VII and other federal anti-discrimination laws apply today. Let’s get a glimpse into the EEOC’s thought process and see what we can learn, after the jump…

First, let’s hear what the EEOC says is the purpose of the Enforcement Guidance on Unlawful Harassment: to “explain the legal standards applicable to harassment claims under federal employment discrimination laws. The laws enforced by EEOC protect individuals from harassment based on race, color, religion, sex, national origin, disability, age, or genetic information.”  Now, this is not the EEOC’s first Enforcement Guidance regarding Workplace Harassment. The EEOC published an Enforcement Guidance on Vicarious Liability for Unlawful Harassment by Supervisors in 1999. Why then, did the EEOC need to publish another one now? What has changed? For starters, according to the EEOC, “Between fiscal years 2012 and 2015, the percentage of private sector charges that included an allegation of harassment increased from slightly more than one-quarter of all charges annually to over 30% of all charges. In fiscal year 2015, EEOC received 27,893 private sector charges that included an allegation of harassment, accounting for more than 31% of charges filed that year. In the same year, federal employees filed 6,741 complaints alleging harassment – approximately 44% of complaints filed by federal employees that year.”

The numbers are not the only reason, however. The workplace has evolved, and so has the EEOC’s position regarding harassment. The Enforcement Guidance is the EEOC’s  opportunity to advance and reflect its current attitude. Just to be clear, since the document is 75 pages long, we cannot cover everything, so let’s see if we can distill some of the key parts.

You may be familiar with the Faragher-Ellerth defense, which, in essence allows an employer to escape liability in a harassment case when it can show it promptly took reasonable steps to prevent and correct harassing behavior. This defense, however does not come into play until after harassing behavior is alleged to have already occurred, and it speaks to the employer’s response to the allegations. The EEOC goes further however. The EEOC has long held the position that employers have an affirmative obligation to respond to conduct that may not in and of itself be actionable harassment. Why? Since the conduct could otherwise escalate and become sufficient to support a harassment claim, the EEOC reasons that employers have a responsibility to be proactive, and address such conduct at the earliest opportunity. The Guidance requires employers to implement programs to address “known or obvious risks of harassment”, and goes as far as to say that failure to do so could result in the loss of traditional affirmative defenses to harassment claims. Whether that is really true will depend on the specific circumstances, however. Remember, the courts, not the EEOC will ultimately determine whether an employer’s response or non-response to certain allegations will warrant losing the Farragher-Ellerth or any other defenses.

According to the EEOC, these five “core principles” have been effective in addressing and preventing harassment:

• Committed and engaged leadership;
• Consistent and demonstrated accountability;
• Strong and comprehensive harassment policies;
• Trusted and accessible compliance procedures;
• Regular, interactive training, tailored to the audience and organization.

Adherence to the above principles will help you retain your defenses to harassment lawsuits, as you will then be able to show that you: a) treat elimination of harassment as a priority; b) enforce and clearly and regularly communicate to all employees a clear and comprehensive anti-harassment policy; c) have created an effective, easily understood internal complaint system, with multiple means of enforcement, along with a process for investigating and resolving complaints by neutral, well-trained HR professionals; d) regularly conduct effective anti-harassment training on your policies and procedures and the consequences for any violations.

The Enforcement Guidance also reflects the EEOC’s current position as that Title VII protects against harassment based on sex stereotyping, sexual orientation, gender identity, genetic information, and pregnancy. (You may recall that Title VII itself does not explicitly include these categories.) That is not all, however. The EEOC in this Enforcement Guidance  says that in addition to what we might see as “traditional” harassment claims, it will entertain harassment claims:

• Based on “perceived” membership in a protected class (even if the perception is incorrect);

• For “associational harassment,” where an employee who is a member of a protected class, claims harassment based on their association with individuals who do not share their protected characteristics;

• Where the alleged harassment was not directed at the complainant;

• In instances where the alleged harassment occurred outside of the workplace.

Again, however, this Enforcement Guidance has no statutory or regulatory authority. That means that it ultimately depends on how much deference the courts will be willing to afford this Guidance. Why should you care about it then? Because harassment claims start with the EEOC, and the EEOC will evaluate and investigate the claims –and attempt to settle them, based on the principles it has articulated in its Enforcement Guidance. It could be a long time before a case escalates to a lawsuit and any chance for dismissal, which means you expend time, resources and significant amounts of money in legal fees.

Now, if you are concerned about this Enforcement Guidance, you can do something. The EEOC must provide a period of time for public comments, and it has extended its original February 9 deadline to March 21. You can submit comments to www.regulations.gov.  You might also consider reviewing, re-evaluating and revising your policies and procedures and train your employees.

OK, that’s all for now. See you next week!

Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.

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