New Expanded Harassment Guidance Issued by EEOC

Diana Uhimov, March 16, 2017

The Equal Employment Opportunity Commission (EEOC) recently issued proposed guidance on workplace harassment. The EEOC is a federal agency charged with enforcing laws that protect individuals from harassment based on race, color, religion, sex, national origin, disability, age, or genetic information. The Proposed Enforcement Guidance on Unlawful Harassment clarifies the legal standards that apply to harassment claims under federal employment discrimination laws.  In its press release accompanying the issuance of the proposed guidance, the EEOC stated that the new direction is essential because of the increase in harassment claims filed over the past several years, making harassment prevention one of its national priorities.  According to the EEOC, between 2012 and 2015, the percentage of annual private sector charges that included an allegation of harassment increased from approximately 25% of all charges to over 30% of all charges.

The proposed guidance encourages employers to be actively involved in preventing workplace harassment by creating programs to eliminate known or obvious risks of harassment.  Under the EEOC’s instrutions, employers who fail to be proactive in eliminating such risks may be subject to forfeiture of established affirmative defenses to harassment claims such as, the Faragher/Ellerth defense that the employer exercised reasonable care to prevent and promptly correct the harassment. This reaffirms the EEOC’s stance that employers have a duty to curtail conduct before it becomes actionable harassment to prevent escalation that could lead to a legal claim.

The section of the proposed guidance titled “Promising Practices” lists five core principles that the EEOC states have generally proven effective in preventing and addressing harassment:

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

While it is important to recognize that these practices are not themselves affirmative defenses to harassment claims, implementing them would put an employer in a better position to rely on the Faragher/Ellerth defense to refute a harassment claim. In order benefit from this affirmative defense, the proposed guidance urges employers to ensure that:

• Management is committed to maintaining a corporate culture where harassment is not tolerated.
• There is a clear and comprehensive anti-harassment policy in effect that is regularly communicated to all employees and strictly enforced.
• An effective, confidential and readily accessible complaint system is in place with an objective investigation and resolution process performed by well-trained employee.
• Harassment training to educate all employees on prohibited conduct, policies, and procedures is conducted regularly.

Harassment is covered by the EEOC only if it is based on an employee’s legally protected personal characteristics.  The types of prohibited harassment have been expanded by the proposed guidance beyond the traditional Title VII prohibitions against harassment on the basis of race, color, national origin, religion, sex, age, and disability.  Actions under the proposed guidance may be based on a wider range of conduct such as, sex stereotyping, sexual orientation, gender identity, genetic information, and pregnancy. Furthermore, the EEOC has declared that it will consider harassment claims:

• Based on the perception that an individual is part of a protected class (even if the perception is incorrect).
• For “associational harassment” against a complainant because he or she associates with individuals outside the complainant’s protected class.
• Where the alleged harassment was not directed at the complainant.
• Where the alleged harassment occurred outside of the workplace in a work-related context.

Although the proposed enforcement guidance will not have the effect of statutory or regulatory authority, it provides insight into how the EEOC will likely handle administrative complaints filed with the agency.  Employers should use the issuance of the proposed guidance as an opportunity to review their anti-harassment policies and complaint procedures, together with their employee training offerings.