In its Proposed Enforcement Guidance on Unlawful Harassment issued on January 10, 2017, the U.S. Equal Employment Opportunity Commission (EEOC) emphasizes that employers should take a proactive role in preventing harassment, as well as in effectively identifying and eradicating harassment if and when it occurs. Public comments on the proposed enforcement guidance will be invited until February 9, 2017.

Borrowing from the Occupational Safety and Health Administration’s general duty standards, the proposed enforcement guidance urges employers to take active steps to minimize the “known or obvious risks of harassment,” and states that failing to do so could mean a failure of a defense to a discrimination claim. As has long been the EEOC’s position, the Commission’s proposed guidance restates its expectation that employers must respond promptly to harassment of which it is, or reasonably should be, aware.  Citing a 2006 case out of the Seventh Circuit, the EEOC’s proposed guidance also emphasizes that employer have a duty to address conduct even before it rises to the level of actionable harassment if otherwise prompt action would prevent escalation. Thus, the proposed enforcement guidance reinforces a long-held best practice that all complaints of harassment should be taken seriously and addressed through prompt and thorough investigation, even if a friend or coworker of the alleged victim is the one complaining. Although the law requires no specific corrective action, the proposed enforcement guidance indicates that the EEOC will closely scrutinize employers’ efforts to correct harassment. 

Building in part on case law over the past 20 years and in part on positions taken by the commission, the proposed enforcement guidance interprets Title VII of the Civil Rights Act of 1964 expansively to prohibit claims of workplace harassment based on any protected characteristic—not only race and color, national origin, religion, sexual, sex, age, and disability, but also such grounds as sex stereotyping, pregnancy, childbirth or related conditions, gender identity, sexual orientation, and genetic information. Notably, under the proposed guidance, the EEOC would recognize claims for harassment based on the perception that an individual has a particular characteristic, even if that perception is incorrect. Moreover, all bases for harassment claims would create a right of action for an associational discrimination claims. That is, the EEOC recognizes claims of harassment based on association with individuals outside the complainant’s protected class. The commission also indicates in the proposed enforcement guidance that harassment based on the intersection of two or more protected classes (for example race and gender) is prohibited.

In addition to the covered bases for such a claim, the proposed enforcement guidance describes the threshold for bringing hostile work environment claims, causation standards, the bases for holding an employer liable for hostile work environment claims (including a description of the limitations on the affirmative defense to strict liability where no tangible adverse action has been taken against a claimant), systemic and “pattern and practice” harassment claims, and a description of what the commission terms “promising practices” for employers. 

These so-called “promising practices” comprise five core principles that the commission recognizes, not as defenses to claims, but rather as preventative measures designed to avert harassment from occurring in the first place. Many of these are recognized best practices. They include:

  • committed, engaged leadership;
  • consistent and demonstrated accountability;
  • strong and comprehensive harassment policies;
  • trusted and accessible complaint procedures; and
  • regular, interactive training tailored to the audience and organization.

While undertaking the “promising practices” may not provide employers with a “safe harbor” against harassment claims filed with the EEOC, instituting such practices would be useful to help establish a culture in which such claims are less likely to occur.

The proposed enforcement guidance follows on the heels of last year’s report from the commission’s Select Task Force on the Study of Harassment in the Workplace, a joint effort of the commission, academic experts, lawyers from both the plaintiffs’ and defense bars, employers, employee advocacy groups, and organized labor. The taskforce analyzed various forms of harassment, identified strategies for combatting harassment in the workplace, and issued its findings in June of 2016, many of which are incorporated in the proposed enforcement guidance.

When finalized, the proposed enforcement guidance would replace the sexual harassment section of the current EEOC Compliance Manual (1990) and various subsequent guidance documents, and would articulate the commission’s updated enforcement stance regarding harassment in the workplace. As with all such documents, the enforcement guidance would not have the force of regulation, however, it would provide a blueprint of how the EEOC will investigate, assess, and potentially litigate harassment cases. Given the recent change in administrations, it is unclear how much of the proposed enforcement guidance will become finalized.

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