Client Alert: EEOC Proposes New Workplace Harassment Guidance
Date: October 19, 2023
The EEOC last issued harassment prevention guidance in 1999 (Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors). Needless to say, a lot has happened since 1999 with respect to workplace harassment issues: the #MeToo movement, the use of social media platforms, advances in technology and the use of artificial intelligence, the rise of the remote/virtual workplace due to the COVID-19 pandemic, and the U.S. Supreme Court’s decision in Bostock v. Clayton County, holding that Title VII protects employees from sex discrimination based on sexual orientation and gender identity. The Guidance is far more extensive than the EEOC’s earlier guidance on harassment, and it seems likely that the final guidance will not differ much from what has been proposed by the EEOC.
What’s Noteworthy?
- Covered Bases Expanded. The Guidance contains extensive examples illustrating the EEOC’s propositions on varying principles of harassment. For example, racial harassment can include harassment based on a person’s name, cultural dress, accent, or manner of speech. Sexual harassment can include intentional misgendering or denying an employee access to a sex-segregated facility like a bathroom or locker room. Discriminatory comments need not be directed at a particular employee to be unlawful. Comments that may not be obviously discriminatory (“you people”) may be unlawful harassment based on the context in which spoken.
The Guidance provides more robust definitions of distinct kinds of unlawful harassment and expands the definition of sexual harassment to include harassment based on pregnancy, childbirth, and related medical conditions, including lactation and reproductive choices such as decisions about contraception and abortion. It also provides an example of harassment based on gender identity and explains that age-based harassment could include “stereotypes about older workers even if not motivated by animus such as pressuring an older employee to transfer to a job that is less technology-focused because of a perception that older workers are not well-suited to such work or encouraging older workers to retire.” The Guidance also includes in the definition of disability harassment, “harassment based on traits or characteristics linked to an individual’s disability, such as how an individual speaks, looks, or moves.”
The Guidance reaches beyond its authority. For instance, it notes that harassment of an employee based on that employee’s association with a person in a legally protected category is unlawful. While the ADA directly prohibits discrimination against an individual because of their association with a disabled person, the other statutes enforced by the EEOC do not contain similar language. Although the EEOC’s Guidance refers to cases holding that Title VII applies to associational discrimination, it does not point to case law under the ADEA or GINA interpreting those laws to prohibit associational discrimination.
The EEOC’s Guidance also addresses considerations when balancing anti-harassment and accommodation obligations with respect to religious expression in the workplace, noting that employers are not required to accommodate religious expression that creates, or reasonably threatens to create, a hostile work environment.
- Hostile Work Environment Explained. The EEOC did not hold back in explaining its position on this category of workplace harassment. A complainant need not show their work performance was harmed or that they sustained psychological injury. There are single incidents that are sufficiently severe to establish a hostile work environment including sexual touching of an intimate body part, the use of a symbol such as a swastika, and the use of the n-word by a supervisor in the presence of a Black subordinate. While not necessarily novel, the Guidance confirms conduct in a virtual work environment and non-work-related conduct, including via social media, may create or support a hostile work environment.
- Liability Standards Addressed. It is well-known that an individual is a supervisor for purposes of employer liability when that person has the authority to make or recommend tangible employment decisions. The Guidance now states that a person without such authority may still be a supervisor for purposes of imputing liability to the employer if the harassed employee reasonably believed them to have such power (apparent authority is what they call this). The Guidance also addresses the relevant considerations for determining whether corrective action taken by an employer was “reasonably calculated” to prevent further harassment and thus, to avoid liability.
Avoiding Liability. An employer can avoid Title VII liability for a hostile work environment claim that does not include a tangible employment action if it can prove that: (1) it exercised reasonable care to prevent and promptly correct harassment and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to take other steps to avoid harm from the harassment (the Faragher/Ellerth defense).
Under the Guidance, for an employer to establish that it exercised reasonable care to prevent and correct harassment, beyond having an effective anti-harassment policy and an effective process for addressing harassment complaints, employers are required to appropriately train employees to ensure they understand their rights and responsibilities and monitor the workplace to ensure adherence to the employer’s policy.
- Standards for Effective Policies, Complaint Process and Training. The Guidance spells out what must be in an anti-harassment policy to be deemed effective: definition of prohibited conduct; proper dissemination of the policy; understandable to its workforce, including those with literacy limitations or different languages spoken; requirement that supervisors must report any harassment of which they are aware; multiple options for reporting harassment (not just one way and to one person); contact information included for those who are charged with receiving a harassment complaint; an appropriate explanation of the complaint process, and statements addressing anti-retaliation and confidentiality. The Guidance also addresses what a complaint process must include to be effective: prompt and effective investigations and corrective action; an explanation of the complaint process; and anti-retaliation and confidentiality protections.
The Guidance further states what effective training must include: at a minimum, explanation of the anti-harassment policy and complaint process, any alternative dispute resolution process, confidentiality of the investigation process, anti-retaliation protections; examples of prohibited harassment; examples of prohibited harassment and what employees are expected to do if they see or hear possible harassment; specific instruction to management on preventing, identifying, stopping, reporting and correcting harassment, all of which is appropriately tailored to the particular workplace and workforce. The employer must provide the training on a regular basis to all employees in an easy-to-understand format.
- Broader Category of Harassers Specified. The Guidance confirms the field of possible harassers has expanded and now includes independent contractors, customers, clients, students, hospital patients, and nursing home residents.
- Employers interested in submitting comments to the EEOC on the Guidance may do so by November 1, 2023: https://www.regulations.gov/document/EEOC-2023-0005-0001
- Employers should continue to regularly conduct workplace training and should review and update it to ensure compliance with the final guidance, once issued. As always, employers should train supervisors on their unique legal responsibilities for preventing and reporting workplace harassment.
- Employers should ensure that all relevant policies and training address conduct that can occur outside the workplace, including on virtual and social media platforms.
- Employers should implement processes to monitor the workplace for compliance with and enforcement of the anti-harassment policies and complaint reporting procedures.
- Employers should regularly communicate their policies on preventing workplace harassment to independent contractors, interns and other workers who may be performing work for that employer although not an “employee” (as well as those who may be regular volunteers in the nonprofit sector). Employers in certain jurisdictions like New York, California, Washington, D.C., Connecticut, and others have annual mandatory training requirements that may include bystander intervention and other particular training requirements.
Conclusion
We are continuing to monitor this Guidance and will report once the EEOC issues its final Guidance. Your Whiteford attorneys are available to discuss these important matters and provide guidance on revisions to policies, practices, complaint procedures, training, and other adaptations that may make sense in light of these developments.
[1] In April of this year, the EEOC issued Technical Guidance on harassment, but only for federal sector employees.
[2] The EEOC enforces Title VII of the Civil Rights Act of 1964 (“Title VII”), the Pregnancy Discrimination Act, The Equal Pay Act of 1963, the Americans with Disabilities Act of 1990, the Age Discrimination in Employment Act of 1967 (“ADEA”), the Genetic Information and Nondiscrimination Act of 2008 (“GINA”), the Pregnant Workers Fairness Act of 2022, all as amended.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.