EEOC Harassment Guidance Receives Much-Needed Update

EEOC Harassment Guidance Receives Much-Needed Update

The Equal Employment Opportunity Commission (EEOC) recently reported that between fiscal years 2012 and 2015, private sector charges of harassment increased to account for 30% of all charges of discrimination received by the EEOC.  These numbers indicate that harassment liability and prevention continue to be important.  The EEOC’s most recent guidance on harassment focused primarily on sexual harassment and vicarious employer liability for harassment by supervisors, both published in the 1990’s.

Although not yet in its finalized form, the 75-page proposed guidance indicates the enforcement priorities of the EEOC and gives some helpful explanations and examples for employers.  Here are some of the highlights from the proposed guidance:

  • The guidance goes beyond sexual harassment and addresses harassment based on race, color, national origin, religion, sex, pregnancy, gender identity (including transgender status), sexual orientation, age, disability, and genetic information.
  • The guidance clarifies the causation requirement for harassment claims. The harassment must be because of a person’s protected status.  The guidance provides helpful examples and factors to consider when determining whether the causation requirement has been met, such as the context and timing of the alleged harassment.
  • The guidance provides detailed descriptions about harassment liability. This section is particularly helpful in understanding the different ways harassment liability can occur including liability derived from the acts of an alter ego, supervisors, and nonsupervisory employees.
  • The final portion of the guidance is dedicated to harassment prevention and provides a checklist to assist employers and HR professionals in preventing and responding to workplace harassment.

Be sure to keep an eye out for the finalized guidance which should be released in the coming months.  For now, it is a good practice to have your HR professionals print out the proposed guidance and review it to make sure they are familiar with the material.

The EEOC recently requested public comments for this proposed guidance.  The EEOC accepted public comments until February 9, 2017, after which it will address the comments received (possibly revise the guidance in light of those comments) and publish a finalized version of the guidance.  While the finalized guidance does not have the force of law, it can be a useful tool for employers and HR professionals to ensure compliance with the law.

Contributor: Michelle L. Covington, Attorney at Law | Weintraub Tobin