The United States Equal Employment Opportunity Commission (EEOC) has recently issued its Proposed Enforcement Guidance on Unlawful Harassment recognizing that almost one third of the approximately 90,000 charges received by the EEOC in fiscal year 2015 included an allegation of workplace harassment prohibited by Title VII of the Civil Rights Act of 1964. Accordingly, the EEOC has proposed this Guidance to focus on identifying ways to prevent harassment and explain the legal standards for unlawful harassment and employer liability.
In the section addressing “Covered Bases and Causation,” the EEOC Guidance interprets Title VII rather expansively to prohibit workplace harassment not only on the traditional bases of race and color, national origin, religion, sex, age and disability, but also on the basis of: sex stereotyping; pregnancy, childbirth or related medical conditions; gender identity; and sexual orientation. Gender identity, which is currently receiving much attention by various courts across the country, is viewed by the EEOC to include an individual’s transgender status as well as an individual’s intent to transition. Notably, not only does the EEOC recognize conventional claims of harassment, but also harassment based upon the perception that an individual has a particular protected characteristic even if that perception is incorrect. The EEOC Guidance also recognizes what is commonly referred to as “associational discrimination” – where harassment is directed at the complainant because he or she merely associates with individuals within a protected class (i.e, via marriage, close friendship, etc.).
Overall, the EEOC desires that employers take proactive roles in both preventing future harassment as well as correcting harassment once it occurs. In this regard, the Guidance emphasizes that, when assessing whether or not an employer has taken adequate steps, the inquiry begins by identifying the policies and practices that the employer has instituted to prevent harassment and respond to complaints of harassment. The EEOC also reminds the reader that even the best policy and complaint procedure will not alone establish that the employer has exercised reasonable care as the employer must also implement those policies and procedures effectively. As such, anti-harassment policies should:
- define what conduct is prohibited;
- be widely disseminated and accessible to workers;
- require that supervisors report or address harassment involving their subordinates when they are aware of it; and
- offer various ways to report harassment, allowing employees to contact someone other than their direct supervisor.
Likewise, the EEOC Guidance identifies and comments upon five “Promising Practices” that have proven to be effective in preventing and addressing harassment. Such best practices include:
- committed and 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.
Once the proposed Guidance is finalized by the EEOC, it will replace the current EEOC policy guidance on issues of harassment issued in 1990. This new guidance is also described as being “sub-regulatory” in that it will not have the force of law, but will provide a better understanding of how the EEOC will investigate, assess and litigate harassment claims going forward. Our Litigation Team also assists our clients in avoiding potential claims. Contact the Litigation Team for more information at 412.242.4400 or at [email protected]