On January 10, 2017, the EEOC published its Proposed Enforcement Guidance on Harassment to follow up on its Report of the Co-Chairs of the Select Task Force on Harassment in the Workplace (“Harassment Prevention Report”) from June 2016. The Enforcement Guidance clarifies the EEOC’s position on and interpretation of how Title VII and other federal anti-discrimination laws will be applied by the EEOC. The purpose of the Enforcement Guidance on Unlawful Harassment is to “explain the legal standards applicable to harassment claims under federal employment discrimination laws. The laws enforced by EEOC protect individuals from harassment based on race, color, religion, sex, national origin, disability, age, or genetic information.”
In 1999, the EEOC had published an Enforcement Guidance on Vicarious Liability for Unlawful Harassment by Supervisors. This latest Proposed Enforcement Guidance is necessary because, according to the EEOC, “Between fiscal years 2012 and 2015, the percentage of private sector charges that included an allegation of harassment increased from slightly more than one-quarter of all charges annually to over 30% of all charges. In fiscal year 2015, EEOC received 27,893 private sector charges that included an allegation of harassment, accounting for more than 31% of charges filed that year. In the same year, federal employees filed 6,741 complaints alleging harassment – approximately 44% of complaints filed by federal employees that year.”
However, the burgeoning increase in harassment claims are not the only reason for the EEOC’s refreshed harassment guidance. The workplace has evolved, and so has the EEOC’s position regarding harassment. The Enforcement Guidance is the EEOC’s opportunity to advance and reflect its current attitude. More specifically, the EEOC’s position is that employers must proactively address harassment in the workplace.
Many employers are familiar with the Faragher-Ellerth defense, which essentially allows an employer to escape liability in a harassment case it can demonstrate that it promptly took reasonable steps to prevent and correct harassing behavior. However, this is a reactionary defense that does not come into play until after harassing behavior is alleged to have already occurred, and it speaks to the employer’s response to the allegations.
The EEOC wants employers to recognize an affirmative obligation to respond to conduct that may not in and of itself be actionable harassment. This is in an effort to address conduct that otherwise could escalate into conduct sufficient to support a harassment claim. The EEOC takes the perspective that employers have a responsibility to be proactive, and address such conduct at the earliest opportunity.
The Guidance requires employers to implement programs to address “known or obvious risks of harassment”, and goes as far as to say that failure to do so could result in the loss of traditional affirmative defenses to harassment claims. Be advised that the courts, not the EEOC, will ultimately determine whether an employer’s response or non-response to certain allegations would warrant losing the Farragher-Ellerth or any other defenses.
The EEOC has identified the following five “core principles” to effectively address and prevent harassment:
- Committed and engaged leadership;
- Consistent and demonstrated accountability;
- Strong and comprehensive harassment policies;
- Trusted and accessible compliance procedures;
- Regular, interactive training, tailored to the audience and organization.
Adherence to the above principles will help employers retain defenses to harassment lawsuits, because employers will be able to demonstrate that it has: a) treated elimination of harassment as a priority; b) enforced and clearly and regularly communicated to all employees a clear and comprehensive anti-harassment policy; c) have created an effective, easily understood internal complaint system, with multiple methods of reporting and enforcement, along with a process for investigating and resolving complaints by neutral, well-trained HR professionals; d) regularly conducted effective anti-harassment training on your policies and procedures and the consequences for any violations.
The Enforcement Guidance also reflects the EEOC’s current broad position as that Title VII protects against harassment based on sex stereotyping, sexual orientation, gender identity, genetic information, and pregnancy. (You may recall that Title VII itself does not explicitly include these categories.) That is not all, however. The EEOC in this Enforcement Guidance says that in addition to what we might see as “traditional” harassment claims, it will entertain broad factual situations for enforcing harassment claims such as complaints:
- Based on “perceived” membership in a protected class (even if the perception is incorrect);
- For “associational harassment,” where an employee who is a member of a protected class, claims harassment based on their association with individuals who do not share their protected characteristics;
- Where the alleged harassment was not directed at the complainant;
- In instances where the alleged harassment occurred outside of the workplace.
Employers should realize that this Enforcement Guidance has no statutory or regulatory authority. Ultimately, its significance depends on how much deference the courts will be willing to afford this Guidance.
Since at this point this is proposed Enforcement Guidance, the EEOC must provide a period of time for public comments, which has recently been extended from its original February 9 deadline to March 21. It is strongly recommended that employers consider reviewing, re-evaluating and revising your policies, operating procedures and training programs to align with this new guidance.