Robert G. Brody and Katherine M. Bogard ()
In January, the Equal Employment Opportunity Commission (EEOC), the federal watchdog for anti-discrimination employment laws, issued proposed guidance on unlawful workplace harassment. This guidance is an update to the 1990s guidance. The EEOC issued the proposed guidance, in part, because one-third of the 90,000 charges it received in fiscal year 2015 included allegations of workplace harassment. It also issued the guidance to clarify its position on the varying interpretations taken by courts across the country. All of this is a remnant from the Obama Administration which begs the question if the Trump Administration will alter these proposed guidelines. But for now, this is the EEOC’s new proposed standard.
As employers know, harassment is covered by the Equal Employment Opportunity (EEO) laws only if it is based on an employee’s legally protected personal characteristics. This includes race, color, national origin, religion, sex, age, disability, and genetic information. Harassment based on the perception that an individual has a particular protected characteristic, such as the belief that a person is a particular race, national origin, or religion, or has a particular sexual orientation is also covered by federal EEO laws even if the perception is wrong.
The guidance provides clarification on various topics such as the scope of hostile work environment claims, systematic harassment, and promising practices for employers to implement.
Hostile Work Environment
The guidance identifies various types of conduct which are the basis for hostile work environment claims. First, it notes conduct not directed towards the employee can contribute to a hostile work environment, e.g., pornography or the display of a noose. Second, a hostile work environment claim may include conduct that occurs in a work-related context that is outside an employee’s regular workplace. Harassment at an off-site training center or harassment via an employer’s e-mail system can contribute to a hostile work environment. Lastly, the guidance notes conduct that occurs outside of work can contribute to a hostile work environment. For instance, if an Asian American employee is the subject of a racist comment on social media and coworkers comment at work, the social media post can contribute to a hostile work environment.
Harassment can be systematic, subjecting a group of individuals to a form of discrimination. If harassment is systemic, then the harassing conduct could subject all of the employees of a protected group to unlawful harassment. For example, all African American employees on a shift may be subjected to the same racial epithets, racial imagery and race-based conduct. This constitutes systematic harassment. In a “pattern or practice” case, the employer’s standard operating procedure is to tolerate this type of hostile work environment.
The guidance also enumerates five core principles which have proven effective in preventing and addressing harassment: (1) committed and engaged leadership; (2) consistent and demonstrated accountability; (3) strong and comprehensive harassment policies; (4) trusted and accessible complaint procedures; and (5) regular interactive training tailored to the audience and the organization.
Leadership and Accountability. Commitment of senior leaders to create and maintain a corporate culture where harassment is not tolerated is key. Leaders should do this by ensuring their organization:
• Has a harassment-free policy that is comprehensive, easy to understand, and regularly communicated to all employees;
• Has a harassment complaint system that is fully resourced, accessible to employees, has multiple avenues for making a complaint (if possible), and is regularly communicated to all employees.
• Regularly and effectively train all employees about the harassment-free policy and the complaint system.
• Regularly and effectively train supervisors and managers to prevent, recognize, and respond to objectionable conduct that, if left unchecked, may rise to the level of unlawful harassment.
• Acknowledge employees, supervisors, and managers, as appropriate for creating and maintaining a respectful workplaces and promptly reporting, investigating, and resolving harassment claims; and
• Impose discipline that is prompt, consistent, and proportionate to the severity of the harassment, when harassment is determined to have occurred.
Comprehensive and Effective Harassment Policy. The guidance states a comprehensive and effective policy should include the following:
• An unequivocal statement that harassment based on any legally protected characteristic is prohibited and will not be tolerated;
• An easy to understand description of prohibited conduct including examples;
• A description of the organization’s harassment complaint system, including multiple (if possible) easily alternatives to report a complaint;
• A statement that employees are encouraged to report conduct they believe constitutes unlawful harassment (or that, if left unchecked, may rise to the level of unlawful harassment), even if they are not sure the conduct violates the policy;
• Assurance that the employer will provide a prompt, impartial, and thorough investigation;
• A promise that the identify of individuals who report harassment, alleged victims, witnesses, and alleged harassers will be kept confidential to the extent possible, consistent with a through and impartial investigation and with relevant legal requirements;
• A statement that employees are encouraged to respond to questions or to otherwise participation in investigations into alleged harassment;
• A statement that information obtained during an investigation will be kept confidential to the extent possible, consistent with a thorough and impartial investigation and with relevant legal requirements;
• An assurance that the organization will take immediate and proportionate corrective action if it determines harassment has occurred; and
• An unequivocal statement that retaliation is prohibited and will not be tolerated, and an assurance that alleged victims, individuals who in good faith report harassment or participate in investigations, and other relevant individuals will be protected from retaliation.
Effective Complaint System. The guidance also spells out what the EEOC views as an effective complaint system. As employers know, a significant defense in discrimination cases is based on the employer’s knowledge of the alleged conduct. If the employer has an effective policy and complaint procedure and the employee fails to report the alleged harassment, the employer has a strong defense even if the harassment occurred. Therefore, employers should heed the EEOC’s advice. It suggests the policy (1) is translated into all languages commonly used by employees; (2) provides multiple avenues to register complaints; (3) provides prompt, thorough, and neutral investigations; (4) is fully resourced; (5) protects the privacy of the alleged victims and other relevant individuals to the greatest extent possible; (6) includes processes to determine if alleged victims are subjected to harassment; (7) includes processes to ensure alleged harassers are not prematurely presumed guilty; and 8) includes processes to convey the resolution of the complaint.
Training. Lastly, the guidance suggests anti-harassment training should be tailored to the organization and the audience. For instance, training for quick service restaurant managers should be very different than professional services managers. For example, managers in quick service restaurants may have more complaints of customer harassment than in office settings when most interactions are over the phone or via e-mail. Additionally, the guidance suggests the training should explain the employees’ rights and responsibilities; the complaint procedure; and the range of possible consequences for engaging in prohibited conduct.
Although the guidance is only proposed, it does provide a road map for how the current EEOC views anti-discrimination statutes and how it will investigate charges. Employers should review their anti-harassment policies and complaint procedures to ensure they are in compliance with the EEOC’s new proposed guidance. It also provides a good reminder that policies should be routinely reviewed to ensure they are in compliance with the ever changing laws and agencies that enforce them.