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Proposed Enforcement Guidance on Unlawful Harassment

2017-02-07

EEOC issued the 75-page document the first week in 2017 as a result of a Select Task Force on the Study of Harassment in the Workplace created in 2015 to analyze workplace harassment and identify innovative and creative prevention strategies. 

The proposed guidance includes a discussion of the EEOC’s position on topics including:

  • defining protected categories, including, with regard to sex-based harassment, incorporating the categories of sex stereotyping and harassment based on sexual orientation, gender identity, and pregnancy, childbirth or related medical conditions;
  • establishing causation, i.e. demonstrating that a complainant was subjected to harassment at least in part because of a protected characteristic;
  • defining the scope of hostile work environment claims, including what may qualify as “severe and pervasive” conduct sufficient to give rise to a claim;
  • employer liability standards when the alleged harassers are supervisors, non-supervisory employees, alter ego/proxies of the employer, or non-employees;
  • systemic harassment and pattern-or-practice claims; and
  • “promising practices” for preventing and addressing harassment in the workplace.
Additionally, the proposed guidance includes citations to court decisions interpreting the covered laws and analyzing how the courts applied the law to specific facts. The EEOC states that the proposed guidance “explains the law on such issues with concrete examples, where the Commission agrees with those interpretations,” and that “[w]here the lower courts have not consistently applied the law or the EEOC’s interpretation of the law differs in some respect, [the] guidance sets forth the Commission’s considered position and explains its analysis.”

The “promising practices” or more commonly known as “best practices” section recommends the following:

1. An effective harassment complaint system should:
  • be fully resourced, enabling the organization to respond promptly, thoroughly, and effectively to complaints;
  • be translated into all languages commonly used by employees;
  • provide multiple avenues of complaint;
  • provide prompt, thorough, and neutral investigations;
  • protect the privacy of alleged victims, individuals who report harassment, witnesses, alleged harassers, and other involved individuals to the greatest extent possible;
  • include processes to prevent retaliation against alleged victims, individuals who report harassment, and witnesses;
  • include processes to ensure that alleged harassers are not prematurely presumed guilty or prematurely disciplined for harassment; and
  • include processes to convey the resolution of the complaint to the complainant and the alleged harasser.
2. Employees responsible for receiving, investigating, and resolving complaints or otherwise implementing the harassment complaint system should:
  • be well-trained, objective, and neutral;
  • have the authority, independence, and resources required to receive, investigate, and resolve complaints appropriately;
  • take all questions, concerns, and complaints seriously, and respond promptly and appropriately;
  • create and maintain an environment in which employees feel comfortable reporting harassment to management;
  • understand and maintain the confidentiality associated with the complaint process; and
  • appropriately document every complaint, from initial intake to investigation to resolution, use guidelines to weigh the credibility of all relevant parties, and prepare a written report documenting the investigation, findings, recommendations, and disciplinary action imposed (if any), and corrective and preventative action taken (if any).
3. All harassment prevention training should be:
  • championed by senior leaders;
  • repeated and reinforced regularly;
  • provided to employees at every level and location of the organization;
  • provided in all languages commonly used by employees;
  • tailored to the specific workplace and workforce;
  • conducted by qualified, live, interactive trainers or, if live training is not feasible, designed to include active engagement by participants; and
  • routinely evaluated by participants and revised as necessary.
One of the recommendations is to conduct “civility training” for employees in an attempt to prevent and address harassment.  This guidance conflicts with National Labor Relations Board (NLRB) decisions in favor of free speech as part of concerted activity. The NLRB has ruled in favor of employees on the basis of protected concerted activity even when the conduct is considered uncivil or disrespectful.

The public comment period has been extended until March 21st.  Provide comments here

The foregoing has been prepared for the general information of clients and friends of Workplace Dynamics LLC and is not being represented as being all-inclusive or complete. It has been abridged from legislation, administrative ruling, agency directives, and other information provided by the government. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel.