On Monday October 2, 2023, the EEOC released its new proposed Harassment Guidance for comment to the public. Comments must be in by November 1, 2023.
A little history – in January 2017, the EEOC issued a 75-page proposed update to its guidance on sexual harassment and asked for public comment. That guidance was never finalized. This new harassment guidance is expanded from sexual harassment and includes pregnancy and birth related harassment, LGBTQ, religion, age, color and more. It is a blueprint for employers of what to watch for and to correct if the ugly harassment head appears.
There are some tricky issues that the guidance tackles. First, a question has arisen in the courts whether a sincerely held religious belief overcomes LGBTQ rights in the workplace. The EEOC states in its guidance that although employers must sometimes make religious accommodations for employees with sincerely held religious beliefs, those accommodations do not include allowing the religious employee to create a hostile work environment for an LGBTQ colleague. The agency specifically laid out a “special consideration when balancing anti-harassment and accommodation obligations with respect to religious expression,” saying that employers “have a duty to protect workers against religiously motivated harassment.”
Further, the guidance expands its reach to cyber space. Specifically, the guidance states that “as with conduct within a physical work environment, conduct within a virtual work environment can contribute to a hostile work environment.” An example in the guidance includes someone making a lewd comment during a video meeting about a colleague with a bed visible in the frame behind them. If the harassment is online through an employee’s personal account, the employer could be caught up in it according to Resolution Economics partner and former EEOC Chair Vicki Lipnic. Yet employers will still have to weigh the EEOC guidance with NLRB enforcement of social media policies. It would be thought that the two would more or less jive, but they may not.
The EEOC later states that the totality of the circumstances controls whether legally liable harassment is present:
“Whether conduct creates a hostile work environment depends on the totality of the circumstances, and no single factor is determinative.[109] Some such circumstances include the frequency and severity of the conduct; the degree to which the conduct was physically threatening or humiliating; the degree to which the conduct interfered with an employee’s work performance; and the degree to which it caused the complainant psychological harm. If harassing acts are based on multiple protected characteristics, and the acts are sufficiently related to be considered part of the same hostile work environment, then all the acts should be considered together in determining whether the conduct created a hostile work environment.”
It will be important that any reasonable suspicion of or notice of harassing behavior be investigated. Employer’s failure to do so could lead to legal liability.
Finally, the EEOC discusses what an appropriate harassment policy, complaint procedures, and training is but provides a caveat.
Policy
“For an anti-harassment policy to be effective, it should generally have the following features, at a minimum:
- the policy defines what conduct is prohibited;
- the policy is widely disseminated;
- the policy is comprehensible to workers, including those who the employer has reason to believe might have barriers to comprehension, such as employees with limited literacy skills or limited proficiency in English;
- the policy requires that supervisors report harassment when they are aware of it;
- the policy offers multiple avenues for reporting harassment, thereby, allowing employees to contact someone other than their harassers;[
- the policy clearly identifies accessible points of contact to whom reports of harassment should be made and includes contact information; and
- the policy explains the employer’s complaint process, including the process’s anti-retaliation and confidentiality protections.
Process
For a complaint process to be effective, it should generally have the following features, at a minimum:
- the process provides for prompt and effective investigations and corrective action;
- the process provides adequate confidentiality protections; and
- the process provides adequate anti-retaliation protections.
Training
For training to be effective, it should generally have the following features, at a minimum:
- It explains the employer’s anti-harassment policy and complaint process, including any alternative dispute resolution process, and confidentiality and anti-retaliation protections;
- It describes and provides examples of prohibited harassment, as well as conduct that, if left unchecked, might rise to the level of prohibited harassment;
- It provides information about employees’ rights if they experience, observe, become aware of, or report conduct that they believe may be prohibited;
- It provides supervisors and managers information about how to prevent, identify, stop, report, and correct harassment, such as actions that can be taken to minimize the risk of harassment, and clear instructions for addressing and reporting harassment that they observe, that is reported to them, or that they otherwise become aware of;
- It is tailored to the workplace and workforce;
- It is provided on a regular basis to all employees; and
- It is provided in a clear, easy-to-understand style and format.
However, even the best anti-harassment policy, complaint procedure, and training will not necessarily establish that the employer has exercised reasonable care to prevent harassment – the employer must also implement these elements effectively.”
There are affirmative defenses to these charges. The most important being whether the employee informed the employer of the harassment. If the employer was not aware of any harassment and the employee never complained to the employer about the harassment or took any other steps to avoid harm from the harassment, it is an affirmative defense to the charges, as in the past.
Therefore, training, training, and more training should be on the employer’s work agenda in the coming year. Review all policies. The EEOC is very aggressive these days, and no one wants to see a press release from the EEOC with the employer’s name on it. Even if the EEOC loses, they never retract these press releases.
Source: EEOC 10/2/23, Law360 10/2/23, Phelps Dunbar 10/2/23
By Anthony Kaylin, courtesy of SBAM-approved partner, ASE.
Click here for more News & Resources.