This past autumn, the U.S. Equal Employment Opportunity Commission (EEOC) issued its Proposed Enforcement Guidance on Harassment in the Workplace. While it still isn’t final guidance, even the proposed content has been long-awaited by many, as it’s the first guidance that the EEOC Commissioners have issued on harassment since 1999.
As you know, the EEOC is a federal agency that enforces laws prohibiting work-related harassment based on sex, race, national origin, color, religion, disability, genetic information, and age. Its guidance serves as a resource for both employers and employees and explains if and how instances of harassment violate federal law based on new emerging problems in the workplace.
The guidance is divided into three separate sections: (1) Covered Bases and Causation; (2) Discrimination with Respect to a Term, Condition, or Privilege of Employment; and (3) Liability.
Covered Bases and Causation
Harassment in the workplace is prohibited by federal law only if it is based on an employee’s legally-protected characteristics. These characteristics include:
- Race & Color: harassment based on an individual’s name, accent, physical characteristics, grooming practices, etc. in relation to their race or skin tone;
- National Origin: harassment based on a person’s nationality or any characteristics linked to an individual’s nationality such as their attire or non-English accent;
- Religion: harassment based on an individual’s religion or lack of religious belief, including coercion to engage in religious practices at work;
- Sex: unwanted sexual attention, coercion for sexual favors, sexist comments, or facially-neutral offensive conduct motivated by sex;
- Age 40 and older: harassment based on stereotypes of older workers or pressuring someone to retire or move to a job that is stereotypically easier for older individuals.
- Disability: harassment based on an individual’s physical or mental disability or harassment based on their requests for reasonable accommodations.
- Genetic Information: harassment based on an individual’s genetics or medical history or their family member’s genetics or medical history.
The guidance also protects associational discrimination, which includes harassment because an employee chooses to associate with someone in a different protected class (e.g., close familial relationships or friendships with another individual belonging to a protected class).
Causation simply means that the evidence must show that the claimant was subjected to harassment specifically because of their protected characteristic. If the harassment isn’t based on a protected characteristic, then it’s not protected under federal law. The determination of whether hostile workplace harassment is based on a protected characteristic depends on all the circumstances – and that’s called the totality of the circumstances.
In determining whether or not the harassment is based on a protected characteristic, the important factors in most cases are: (1) whether the conduct is facially discriminatory, meaning that it explicitly insults or threatens an individual based on their protected characteristic; (2) whether it’s based on social or cultural stereotyping; (3) the context in which the harassment arises; (4) timing of the harassment; and (5) the link between implicit bias connected to a protected class and the facially discriminatory conduct.
Discrimination with Respect to a Term, Condition, or Privilege of Employment
The United States Supreme Court has provided two examples of unlawful harassment based on a term or condition of employment: (1) an explicit change to the terms or conditions of employment that is linked to harassment based on the employee’s protected characteristic and (2) conduct that constructively changes the terms or conditions of employment through the creation of a so-called hostile work environment.
If there aren’t any explicit changes to the terms or conditions of employment, harassing conduct still can be actionable by an employee if it’s sufficiently severe or pervasive enough to create an objectively and subjectively hostile work environment. Essentially, the conduct must be more than merely offensive, but the courts don’t require that the behavior caused psychological harm to the claimant.
A hostile work environment isn’t about hostility; rather it’s about discrimination or sexual harassment. Don’t think about it as a boss who’s a bully. Instead, a work environment becomes hostile if there are including physical or sexual assaults or threats; offensive jokes, slurs, epithets, or name calling; intimidation, bullying, ridicule, or mockery; insults or put-downs; ostracism; offensive objects or pictures; and interference with work performance – and each must be related to a protected class.
Your liability for harassment depends on whether courts consider the harasser (1) a proxy of you, (2) a supervisor, or (3) a non-supervisory employee or even a non-employee.
If the alleged harasser is a proxy, then the employer is automatically liable for the hostile work environment created by the harasser’s conduct. Essentially, the actions of the harasser are the actions of the employer. In these cases, the defense is quite challenging.
If the alleged 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 actions. Here, too, the defense is tough.
If the alleged harasser is a supervisor and the alleged hostile work environment does not include a tangible employment action against the victim, the employer is also vicariously liable for the harasser’s actions; however, the employer has some defenses both to liability and damages.
If the harasser is any person other than a proxy or supervisor, the employer is liable for the hostile work environment created by the harasser ONLY IF the employer failed to act reasonably to prevent the harassment or failed to take reasonable corrective action in response to the harassment if it was aware or should have been aware that the harassment was occurring.
New Developments in EOCC Harassment Compliance with this Guidance
- This guidance extends harassment based on sex to include sexual orientation or gender identity, with the EOCC specifically noting that harassment can include the use of a name or pronoun inconsistent with an individual’s gender identity.
- The definition of sex under the guidance also now includes harassment based on pregnancy, childbirth, lactation, and a women’s reproductive decisions (e.g., her choices on contraception or abortion).
- An individual may establish a harassment claim based on conduct that was not specifically directed at them. Furthermore, an individual who was not subject to the harassing conduct may file a harassment claim if they feel they’ve been harmed by the harassment of a third party.
- Harassing conduct must be evaluated in the context in which it arises. In certain circumstances, conduct that isn’t discriminatory on its face may in fact be discriminatory based on the specific context in which it occurs or within a larger social context.
- A claimant doesn’t need to prove that the discriminatory conduct harmed their work performance to prove that a hostile work environment exists.
- An employee’s use of electronic communications and social media can contribute to a hostile work environment. This includes an employee’s use of private phones, computers, or social media accounts if they’re posting harassing or discriminatory comments regarding a co-worker on social media.
What Employers Need to Know
You should review this proposed guidelannce and – which hasn’t yet been formally adopted but which signals the EEOC’s renewed effort at policing workplaces around the United States – and it’s advisable to consider your current policies and trainings with the guidance in mind.
For example, if your Employee Handbook contains old verbiage on sexual harassment or discriminatory behaviors, now is the time to update it. Moreover, it’s a best practice to have in place effective anti-harassment and anti-discrimination policies as well as to provide adequate trainings and transparent complaint processes in your workplace.
If an employee reports a concern, it’s critical to conduct a timely and comprehensive internal investigation. Your investigator must be impartial and free from any influence from the alleged harasser. Once the investigation is complete, you should then inform the claimant and alleged harasser of the investigation’s findings and any corrective action that you’ll be implementing, if any.
Last, employers must keep all records of harassment reports, complaints, and investigations. Not only do these records help you improve your preventative measures, but they also make it easier to adopt a systemic remedy to address any patterns of discrimination or harassment that may come to light.
For these and other employment issues, reach out and speak with one of our attorneys. We’re always here to help.