Employment Law Observer

On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) published a final version of its Enforcement Guidance on Workplace Harassment. The new guidance provides  updates and agency direction on workplace harassment in virtual or online work environments, as well as harassment related to sexual orientation, gender identity, pregnancy, and religion.

As Illinois employers get into the swing of 2019, do not forget Illinois has a new and additional posting requirement that came about as a result of amendments to the Illinois Human Rights Act in the Fall of 2018. That posting requirement obligates employers to post the notice found here with your other postings to employees and to include the substance of the content in your employee handbooks. It reminds employees of their right to be free from discrimination, sexual harassment, and retaliation, as well as their right to a reasonable accommodation for pregnancy and disabilities.

It is the end of the year and while everyone is busy, employers in California should be aware of new laws and regulations that go into effect on January 1, 2019. In the spirit of the season, we have used the "12 days of the holidays" to blog about one California law a day and that law's impact on California employers. Without further ado, on the twelfth day of Christmas, my Labor and Employment attorney gave to me—twelve lords a leaping and SB 1300. We saved SB 1300 for the end because it is chock full of important changes for employers.

Employers frequently raise failure to report harassment as a defense in Title VII and related state cases. After all, how can you end harassing behavior if you are not aware of it. As the Eleventh Circuit reminded us earlier this week, that defense breaks down if the employer is aware of the conduct.

Employers are equipped and know how to handle complaints of racial discrimination and harassment—or at least should be so prepared. However, facts have a funny way of developing into novel situations. What happens, for instance, if an employee is being called a racist by other employees?

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.

It is not uncommon for companies to contract their daily business operations to third-party companies. In Motta et al v. Global Contact Services, Inc., the court addressed whether such relationships relieve the outsourcing company of any duties to address discrimination or harassment in the workplace.

The U.S. Court of Appeals for the Seventh Circuit has determined that employees may be held individually liable under Section 1981 if their discriminatory actions led their employer to terminate another employee. This was a case of first impression involving the so-called “cat’s paw” theory of liability, so-named for a fable involving a monkey that persuades a cat to pull roasting walnuts from a fireplace, only to burn his paw and get no walnuts himself. “Why should the ‘hapless cat’ (or at least his employer) get burned,” the panel asked, “but not the malicious ‘monkey?’”

At a company dinner, a supervisor commented to a young male employee that she preferred younger men and had engaged in multiple workplace relationships. A vice president of the company learned of the supervisor’s comments and reported them to management as sexual harassment in violation of Title VII of the Civil Rights Act of 1964, as amended (Title VII). At the same time, he reported that the same supervisor was racially discriminating against a subordinate whom he believed she had treated too harshly. The vice president was subsequently fired due to his inadequate work performance. He then sued the employer alleging that he was fired in retaliation for opposing the supervisor’s sexual and racial harassment of other employees in violation of Title VII and Section 1981. The U.S. Court of Appeals for the Seventh Circuit rejected the vice president’s claim. The court found that the vice president did not engage in “protected activity” when he reported the supervisor’s purported sexual harassment because he could not have reasonably believed that the supervisor’s behavior, “a single instance of sexually charged remarks,” amounted to sexual harassment. The court reasoned that while the supervisor’s remarks were “imprudent,” they were “relatively tame.” Although the court did find that the vice president engaged in protected activity when he reported what he believed to be racial discrimination, the vice president did not present evidence to rebut the employer’s legitimate reason for terminating him, in that his work performance was not adequate. The court consequently dismissed his case. Employers must be certain that adverse action is never taken against an employee for having opposed what he or she reasonably believed to be unlawful discrimination or harassment.

An African-American employee was involved in a personal feud with several co-workers, leading her to file 10 complaints of racial harassment within a two-year period. The employer promptly investigated each of the complaints, determining in only one case that the alleged harassment had occurred and that discipline was appropriate. Where the evidence was inconclusive, the employer counseled all parties involved to treat one another with respect. The employee was unsatisfied with those responses, however, and sued the employer. He alleged that the employer had allowed its employees to create a racially hostile work environment in violation of Title VII of the Civil Rights Act of 1964, as amended. An employer is liable under Title VII for an employee’s harassment when it fails to take reasonable steps to discover and remedy the harassment. The U.S. Court of Appeals for the Seventh Circuit found no basis for employer liability because the employer had investigated each of the employee’s complaints with vigor and had taken appropriate corrective action when necessary. The court concluded: “As we have said before, prompt investigation is the hallmark of reasonable corrective action.” Employers should remember that when they become aware of a potential complaint of harassment, it is imperative to immediately investigate and respond accordingly; by doing so, the employer will avoid liability for employee’s misconduct.

A black employee claimed that two of his co-workers started taunting him with racial epithets soon after he was hired. In accordance with the company’s anti-harassment policy, the employee complained to the company owner. The company owner immediately berated the two co-workers and warned that further harassing incidents would result in immediate termination. One of the co-workers continued to use racial epithets. The employee then complained to another worker, but never reported the later incidents to the owner. The employee sued, alleging that the employer violated Title VII of the Civil Rights Act of 1964, as amended (Title VII), for failing to address his co-workers’ continued use of racial epithets. The employee argued that the employer was liable for two distinct failings: (1) inadequate discipline following the initial harassment; and (2) failure to address the later harassment—of which the employer had notice through the employee’s complaints to the other worker. The U.S. Court of Appeals for the First Circuit rejected the employee’s arguments and held that “when co-workers, rather than supervisors, are responsible for the creation and perpetuation of a hostile work environment . . . an employer can only be liable if the harassment is causally connected to some negligence on the employer’s part.” The court ruled that the employer’s response to the initial harassment was “swift and appropriate” and that the employee’s failure to report to the company owner, as ordered, was “fatal to his claim of employer liability.” Employers should adopt an anti-harassment policy that makes clear whom the employee must notify about harassing incidents. By ensuring a swift and initial response to harassment, and a clear directive as to whom employees must notify of current and further harassing incidents, employers will be able to defend against any subsequently filed lawsuit.