EEOC Seeks Public Input on Proposed Enforcement Guidance on Unlawful Harassment

The EEOC issued Proposed Enforcement Guidance on Unlawful Harassment on January 10, 2017. It is designed to consolidate numerous agency guidelines into one document and addresses hostile work environment harassment prohibited by statutes enforced by the EEOC. The Guidance examines three primary elements of a harassment claim. First, is the conduct based on a legally protected status; second, is the conduct sufficiently severe or pervasive to create a hostile work environment; and third, is there a basis for employer liability. The 75-page treatise covers key case law since the Supreme Court first recognized harassment as an actionable form of discrimination in 1986.

There is nothing groundbreaking in the Guidance. However, it is a worthy read for any human resources professional as a reminder of how broad actionable harassment claims can be. For instance, harassment can involve conduct in the workplace as well as outside of it. Sex-based harassment includes more than asking co-workers out on dates: it includes conduct aimed at someone based on their sex; sex stereotyping; conduct based on pregnancy/childbirth and conduct based on gender identity (including sexual orientation). Harassment claims can be founded on actions taken based on the perception that someone is within a protected class; or associational, that is, if a person associates with someone outside of his/her protected class. Non-employees can create a hostile work environment, the guidance citing as examples independent contractors, customers, patients, nursing home residents and employees of one’s clients. Some of these principles may not be on an employer's radar until it is too late.

Of interest, the Guidance addresses off-work conduct, including: social media. The following example comes from the guidance:

Conduct on Social Media Platform Outside Workplace. Brad and Al work on an all-male construction crew.  Al is the crew superintendent, and he regularly brings pornographic magazines to the construction site to share with the other crew members during lunch breaks.  After Brad repeatedly refuses to look at the magazines, Al and the other crew members begin taunting Brad.  Al uses his smartphone to post comments on his personal Facebook page calling Brad a “princess” and “f____t.”  Brad and the other crew members see Al’s posts about Brad, and they talk about the posts at work and begin directing epithets at Brad, simulating sex acts around him, and exposing themselves to him.  An investigator finds that the Facebook posts contributed to a hostile work environment even though they were written on a personal smartphone and some were written after-hours.

This example is a startling reminder of how important it is to have an effective anti-harassment policy and the publication of that policy so all employees understand what is expected of them in and out of work.

The last section of the guidance then focuses on the components of an effective anti-harassment policy. This policy should define prohibited conduct; be disseminated throughout the workplace; be understandable to workers, including those with limited English skills; require supervisors to report or address harassment; and provide various ways to report harassment, not just through a direct supervisor. The complaint procedures should include an effective investigative process, provide for prompt corrective action, and have adequate confidentiality protection and anti-retaliation provisions.

The Guidance closes with the positive changes the EEOC has seen in harassment prevention. The task force that studied work place harassment identified five core principles in businesses having positive work environments:

Committed and engaged leadership;

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

The take away for employment attorneys, general counsel, and human resources professionals is to ensure that your client or company has an adequate anti-harassment policy with a sound complaint procedure; effective distribution and communication of this policy; training in critical anti-harassment principles such as identifying what is harassing conduct and the legal requirement to eliminate it from the work place; vigilance in overseeing behavior in the workplace and, to the extent possible, outside the workplace, with the goal of providing a workplace free of conduct based on employees' protected characteristics.

The proposed Enforcement Guidance on Unlawful Harassment is available for public input until Feb. 9, 2017. Input may be submitted here.

Further information on this guidance or topic is available from Linda K. Horras or any Hinshaw employment attorney.