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The U.S. Equal Employment Opportunity Commission’s Proposed Enforcement Guidance on Unlawful Workplace Harassment

The U.S. Equal Employment Opportunity Commission (EEOC) has recently issued a proposed 75 page enforcement guidance on unlawful workplace harassment. The proposed guidance document explains the legal standards applicable to claims of unlawful harassment under federal employment discrimination laws.

When it is issued in final, this proposed sub-regulatory document will supersede four prior guidance documents issued by the EEOC. The proposed guidance document is intended to communicate the Commission’s position on important legal issues. The guidance document will also provide valuable insight on the state of federal discrimination and unlawful workplace harassment law.

The laws enforced by the EEOC protect individuals from harassment based on race, color, religion, sex (including sexual stereotyping, pregnancy, childbirth and related medical conditions, gender identity and sexual orientation), national origin, disability, age or genetic information. Harassment is covered by the EEO laws only if it is based on an employee’s legally protected personal characteristics. Federal EEO law is violated if the evidence establishes that the complainant was subjected to harassment creating a hostile work environment because of his or her protected characteristic. For an employer to be liable under an EEO statute for workplace harassment based on a protected trait, the harassment must be sufficiently severe or pervasive to affect a “term, condition, or privilege” of employment. Two examples of unlawful harassment are: (1) an explicit change to the terms or conditions of employment that is linked to harassment based on a protected characteristic, e.g., firing an employee because she rejected sexual advances, and (2) conduct that constructively changes the terms or conditions of employment through creation of a hostile work environment. Thus, harassment based on a protected characteristic is actionable when the employee is subjected to “discriminatory intimidation, ridicule, and insult” that is severe or pervasive enough to create an objectively and subjectively hostile work environment.

As many employers recognize, adopting proactive measures helps to prevent harassment from occurring. The EEOC identifies five core principles that have generally proven effective in preventing and addressing harassment: 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 the organization.

The cornerstone of a successful harassment prevention strategy is the consistent and demonstrated commitment of senior leaders to create and maintain a culture of respect in which harassment is not tolerated. A comprehensive, clear harassment policy that is regularly communicated to all employees is essential.

As discussed by the EEOC, an effective harassment complaint system welcomes questions, concerns, and complaints; encourages employees to report potentially problematic conduct early; treats alleged victims, complainants, witnesses, alleged harassers, and others with respect; operates promptly, thoroughly, and impartially; and imposes appropriate consequences for harassment or related misconduct, such as retaliation. Regular, interactive, comprehensive training of all employees will ensure that the workforce understands organizational rules, policies, procedures, and expectations, as well as the consequences of misconduct.

A well drafted, thoughtfully communicated, and properly updated harassment prevention policy will help to ensure that the workplace is free from harassment and discrimination to the benefit of employers and employees.

Should you have questions regarding unlawful harassment, workplace investigations, retaliation, or work place policies, please feel free to contact Scott D. Simpkins at 216-621-8484.