EEOC issues new enforcement guidance on harassment

In the waning days of the Obama administration, the EEOC issued proposed guidance on how it plans to enforce anti-harassment provisions of several federal laws. The guidance will replace existing guidelines that dated from the 1990s.

THE LAW: Workplace harassment claims fall across several federal laws. Title VII of the Civil Rights Act protects workers from harassment based on sex, race, color, national origin and religion. The ADA bars employers from harassing employees based on their actual or perceived disabilities. The Age Discrimination in Employment Act protects workers 40 years of age and older.

WHAT’S NEW: The EEOC has asked for public comment on its proposed enforcement guidance. Read the guid­­­ance online at www.regulations.gov/docket?D=EEOC-2016-0009. Comments must be submitted by March 21.

Because the guidance relies heavily on existing laws and court decisions, employers will not see much of anything new here.

However, the guidance does provide a road map that can help employers keep their workplaces harassment-free. Knowing how the EEOC plans to enforce anti-harassment provisions makes it easier to comply.

HOW TO COMPLY: The guidance provides numerous examples of harassment, along with cases in which em­­ployees allege misbehavior that may not meet the legal definition of harassment.

Key point: To be unlawful, harassment must be based on the employee’s protected class. Mere personality conflicts are not illegal harassment.

Varying employer liability

An employer’s liability for harassment often depends on who the harasser is. The guidance lays out these possible scenarios:

• If the harasser is a proxy or alter ego of the employer, the employer is strict­l­­y liable for the harasser’s con­duct. The actions of the harasser are considered the actions of the em­­ploy­­er, and there is no defense to liability.

• If the harasser is a supervisor and the hostile work environment includes a tangible employment action against the victim, the employer is vicariously liable for the harasser’s conduct. There is no defense to liability.

• If the harasser is a supervisor, and the hostile work environment does not result in a tangible employment action, the employer is vicariously liable for the actions of the harasser. The employer, however, may limit its liability if it can prove a two-part affirmative defense.

• If the harasser is not a proxy or alter ego of the employer and is not a supervisor, the employer is liable for the hostile work environment created by the harasser’s conduct if the employer failed to act reasonably to prevent the harassment or to take corrective action in response to the harassment when it was aware or should have been aware of it.

Employers can defend against liability for harassment either honoring a “duty of reasonable care” or showing that the employee failed to take advantage of preventive or corrective opportunities.

Duty of reasonable care

Employers demonstrate they have performed their duty of reasonable care by “promulgating a policy against harassment, establishing a process for addressing harassment complaints, providing training to ensure employees understand their rights and responsibilities pursuant to the policy, and monitoring the workplace to ensure adherence to the employer’s policy.”

To be effective, an anti-harassment policy should:

• Define what conduct is prohibited

• Be widely disseminated and accessible to workers, including those with limited proficiency in English

• Require supervisors to report or add­ress harassment involving their subordinates when they are aware of it

• Offer various ways to report harassment, allowing employees to contact someone other than their direct supervisor.

To be effective, a complaint process should provide:

• For effective investigations and prompt corrective action

• Adequate confidentiality protections

• Adequate anti-retaliation protections.

Preventive or corrective activities

Employers can also assert a defense that the employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Employers may still be liable though if the employee is harmed by unlawful harassment if the employee had no reasonable way to avoid harm.

In some cases, employers may still be liable if employees fail to exercise their rights. Examples: If the employer fails to offer remedies in good faith or if the employee reports the harassment directly to the EEOC or equivalent state agency.

Employers can also be liable if they know of the harassment and do not take steps to correct it.

Using the guidance as a tool

The biggest change in the new guidance is an open discussion of sexual orientation harassment. Courts have long held same-sex harassment to be the same as opposite-sex harassment and the guidance has finally caught up with those decisions.

Employers should use the new guidance as a set of best practices when designing anti-harassment policies and procedures. By taking it step-by-step and comparing existing practices to what the guidance recommends, employers can limit potential liability.