The #MeToo movement has thrust the systemic workplace sexual harassment epidemic into the national spotlight. This pervasive crisis, however, has long persisted across all industries. Now, more than ever, employers need specific universal guidance on how to prevent and remediate sexual harassment as well as other forms of workplace harassment. The much-anticipated 2017 Enforcement Guidance on Unlawful Harassment from the U.S. Equal Employment Opportunity Commission (hereinafter “proposed guidance”) will provide critical and concrete methods to combat harassment in the workplace. The proposed guidance explains the legal standards for unlawful harassment and will replace earlier guidances issued in the 1990s. Significantly, the propose guidance has been the culmination of a far-reaching EEOC study, which began even before the recent #MeToo movement fully materialized.
In 2015, the EEOC formed a Select Task Force on the Study of Harassment in the Workplace, co-chaired by Chai R. Feldblum and Victoria A. Lipnic. The co-chairs released their findings in a comprehensive report and executive summary and recommendations to the EEOC in June 2016, which focused on identifying ways to renew efforts to prevent harassment. See Chai R. Feldblum & Victoria A. Lipnic, EEOC, Select Task Force on the Study of Harassment in the Workplace, Report of Co-Chairs Chai R. Feldblum & Victoria A. Lipnic (June 2016). The statistics on allegations of workplace harassment are staggering. As detailed by the select task force co-chairs’ report, nearly a third of the 90,000 EEOC charges received by the commission in 2015 included allegations of workplace harassment, under multiple protected areas, including on the basis of sex, sexual orientation, gender identity, pregnancy, race, disability, age, ethnicity, national origin, color and religion. See Executive Summary at 1. Even more troubling is that approximately three out of four harassed employees never report the conduct, and current methods aimed at prevention have been ineffective. See id. at 2.
