How can my business prevent harassment in the workplace?
The Equal Employment Opportunity Commission recently proposed enforcement guidance to address unlawful workplace harassment under federal anti-discrimination laws.
This proposal is based substantially on an EEOC report issued in June 2016 which encouraged employers to establish and implement comprehensive anti-harassment policies, communicate these policies to employees, provide anti-harassment training, and conduct regular self assessments to prevent harassment.
In short, the guidance seeks to clarify the legal standards regarding harassment claims based on race, color, sex, national origin, disability, religion, age, and genetic information. The EEOC proposal clarifies the agency's position on a wide range of topics and covers specific examples of conduct that would and would not constitute unlawful discrimination.
In particular, the guidance defines protected classes, establishes grounds for causation, the scope of claims based on hostile work environment, employer liability standards applicable to supervisory, non supervisory, and non-employees (e.g., contractors), and suggests policies and practices for employers aimed at preventing workplace harassment.
In addition, the guidance includes court decision citations related to the interpretation of covered laws, including:
- Title VII of the Civil Rights Act of 1964 (Title VII)
- The Age Discrimination in Employment Act (ADEA)
- The Americans with Disabilities Act (ADA)
- The Genetic Information Nondiscrimination Act (GINA)
The guidance notes how the EEOC agrees with these interpretations and also discusses cases in which the lower courts failed to consistently apply the law or how the EEOC's position differed from those rulings.
In sum, the proposed guidance is a comprehensive review of how the EEOC intends to enforce anti-discrimination laws and root out workplace discrimination. If the guidance is adopted, pre-existing guidance documents (issued during the 1990s), and a section of the Commissions Compliance Manual on harassment would be superseded.
The EEOC is seeking public comment on the proposal and the deadline for submissions is February 9 2017. In the meantime, any business that is seeking to establish and implement policies and procedures to prevent harassment in the workplace is well advised to seek the advice and counsel of an experienced employment law attorney.