Time to Reexamine Your Thinking About Workplace Harassment

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Sexual harassment lawsuits made headlines in 2016. The high-profile claims likely attracted the attention of employees everywhere and may have heightened public awareness of the issue. Perhaps not coincidentally, the Equal Employment Opportunity Commission recently issued a proposed Enforcement Guidance on Unlawful Harassment.

The EEOC will take comments from the public regarding the content of the proposed Enforcement Guidance until March 21, 2017, after which it may make revisions and will issue a final version replacing the prior Guidance on the topic.
 
What is an Enforcement Guidance? A governmental agency issues an Enforcement Guidance to express official agency policy. An Enforcement Guidance is not a law or a regulation; rather, it details the agency’s official position on legal issues. In the case of the EEOC, an Enforcement Guidance serves to explain how, in the EEOC’s view, the employment laws and regulations apply to specific workplace situations. It also signals how the EEOC will evaluate and investigate complaints that it receives.
 
The proposed Enforcement Guidance on harassment draws on recent cases from federal courts, some of whom have taken a more expansive view of when harassing behavior can form the basis of a lawsuit. It also reveals the EEOC’s current perception of actionable harassment. In addition to harassment based on traditional classifications (gender, race, national origin, age, disability, and religion), the Enforcement Guidance reveals that the EEOC considers harassment based on sex stereotyping, sex identity, and sexual orientation as harassment that violates Title VII of the Civil Rights Act of 1964. It also shows that the EEOC intends to treat harassment based on an employee’s genetic information as illegal harassment.
 
In addition to detailing new forms of harassing behavior, the proposed Enforcement Guidance expresses to employers the EEOC’s expectation that employers not only address workplace harassment after receiving a complaint, but be proactive in eliminating it. For instance, the EEOC will examine whether employers have implemented programs that not only prohibit illegal harassment but also identify and minimize known or obvious risks of harassment (for example, harassment by customers). Perhaps the most surprising aspect of the proposed Guidance is the EEOC’s position that although harassing conduct not based on a protected classification (a person’s sex, race, etc.) is not unlawful, employers may nevertheless have a duty to respond to such conduct where they should suspect that the conduct, if left unpunished, will continue and eventually result in illegal harassment.
 
Finally, the proposed Enforcement Guidance emphasizes that in order for employers to successfully defend against claims of illegal harassment by coworkers, they must have a policy prohibiting illegal harassment that they regularly communicate to employees, have an effective, multi-level complaint system with investigations conducted by well-trained individuals, and conduct regular harassment prevention training.
 
As mentioned above, the period to comment on this proposed Enforcement Guidance remains open. In addition, it is not clear what affect the subsequent Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs may or may not have on the finalization of this Guidance. Regardless, the proposed Guidance provides a window into the EEOC’s understanding of the current state of the law governing illegal harassment, as well as an indication that the EEOC intends to make harassment claims a priority. Therefore, now is a great time to revisit your company’s harassment prevention policy in order to make any necessary changes. For example, does your policy fully inform your employees of what constitutes illegal harassment, and does it provide more than one option for reporting harassing conduct? When did your company last communicate its policy to employees? How are you informing non-English speaking employees about the policy? Have all of your managers and supervisors received harassment prevention training? Do you conduct training on a regular basis? Time spent now to shape up your company’s program will most certainly pay great dividends both in terms of litigation avoidance and a strong defensive position for the occasions when litigation cannot be avoided.
 
Contact Germaine Winnick Willett or another member of Ice Miller's Labor, Employment and Immigration group if you have questions about this Guidance or would like to discuss your harassment prevention policies, procedures or training. You can contact Germaine at (317) 236-5993.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

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