EEOC Issues Proposed Enforcement Guidance of Unlawful Harassment, Seeks Comment

by Amelia J. Holstrom

On January 10, 2017, the Equal Employment Opportunity Commission (EEOC) issued its Proposed Enforcement Guidance on Harassment.  The proposed guidance touches on a number of matters, both new and old. In the majority of the 75-page proposed guidance, the EEOC reiterates the elements of harassment and the defenses available to the employer, and provides a number of examples.  In the remainder of the document, however, the EEOC specifically defines each protected class under federal law and provides some training tips for employers.

Unlike the Massachusetts’ anti-discrimination law, which expressly lists gender identity and sexual orientation as protected classes, the federal statute, Title VII, does not.  The EEOC, however, has begun to interpret the prohibition against sex discrimination and harassment to include discrimination and/or harassment based on sexual orientation and gender identity.  As a result, as it has done in the past, the EEOC includes in its definition of sex discrimination and harassment discrimination and harassment based on sexual orientation and gender identity.

Although the EEOC has a long-standing practice of issuing harassment guidance, the EEOC appears to take things a step farther in the January 10 guidance and makes some policy and training suggestions for employers.  The proposed guidance states that the “cornerstone of a successful harassment prevention strategy” rests with senior leaders who must consistently maintain that harassment will not be tolerated in the workplace.  The EEOC sets forth that leaders should frequently and clearly state that harassment is prohibited, allocate resources and time for harassment prevention strategies and efforts, and assess and eliminate harassment risks.

Additionally, the EEOC suggests that employers have an anti-harassment policy, which should include, among other things, a statement that harassment based on any protected characteristic is prohibited, examples of what constitutes harassment, including a definition of prohibited conduct, a statement encouraging employees to report inappropriate conduct, a statement that the employer will conduct a prompt and thorough investigation, and a statement that retaliation is prohibited against those who file complaints and/or participate in investigations.

For employers in Massachusetts, should the proposed guidance be finalized as is, most employers already have an anti-discrimination and anti-harassment policy that meets the EEOC’s suggested criteria.  Under Massachusetts law, employers are required to have a sexual harassment policy which contains a number of the same criteria.  As a practical matter, however, most employers have adopted and issued broader anti-discrimination and anti-harassment policies that include all types of unlawful harassment, as the EEOC suggests.  Should the EEOC’s guidance be finalized, however, employers should review their policies to see if they want to or should make any changes based on the guidance.

Lastly, the proposed guidance indicates that employers need an effective and accessible harassment complaint system and that they should conduct repeated and regular anti-harassment training that is led by senior leaders.

The EEOC does not directly state what sparked its decision to reiterate some of its previous guidance and make new suggestions for employers in the proposed guidance, but its decision appears to be motivated, at least in part, by the increase in the number of harassment charges brought before the EEOC in 2015.  Almost one-third of the 90,000 charges filed before the EEOC in 2015 contained allegations of unlawful harassment.  The 2016 data is not yet available.

The EEOC is seeking public comment on the proposed guidance, which can be submitted electronically here or by sending written feedback to: Public Input, EEOC, Executive Officer, 131 M Street, N.E. Washington, D.C. 20507 by March 21, 2017.  After the comment period closes, the EEOC will review all feedback and consider making revisions prior to finalizing its guidance.

Notably, the proposed guidance was issued just 10 days before President Donald Trump was sworn into office.  As a result, the proposed guidance may be delayed, significantly changed, or eliminated altogether.  For example, it isn’t any secret that at least some members of Trump’s administration have opposed interpreting the terms “sex discrimination” in Title VII to include sexual orientation and gender identity. And, within hours of taking the oath of office, some media outlets were reporting that the White House website had removed a number of webpages that appeared on White House website just hours before, including the LGBT rights page.  Combine this with the fact that President Trump will be able to appoint, with the approval of the Senate, several individuals to the EEOC, and we might see some significant changes in the EEOC’s agenda.  Specifically, the EEOC is made up of a Chair, Vice Chair, three Commissioners, and the General Counsel.  The Chair of the EEOC, Jenny R. Yang, who was named by President Obama and unanimously confirmed by the Senate has a term ending on July 1, 2017.  The Vice Chair and General Counsel positions are currently vacant.  As a result, President Trump will have the opportunity to appoint, subject to approval by the Senate, a new Chair, Vice Chair, and General Counsel in the next few months.  Additionally, Commissioner Chai Feldblum’s term ends in July 2018; Commissioner Charlotte Burrows term ends in July 2019; and Commissioner Victoria Lipnic’s term ends in July 2020.  As a result, President Trump’s administration will have the opportunity to shape the make-up of the EEOC, which may impact the EEOC’s stance on certain issues, including those addressed in this proposed guidance.

My colleague Stefanie Renaud and I will be presenting a firm breakfast briefing on March 2, 2017 from 8:00 – 10:30 in Springfield, Massachusetts titled “What Will 2017 Bring?: Employment Law in the New Year” at which we will analyze, among other things, the potential impact of the new administration on the EEOC, as well as the DOL Overtime Rule, Labor Relations, and other matters important to employers.  If you would like more information or would like to register, please call our office for more information.

The use of this seal confirms that this activity, the March 2, 2017 breakfast briefing titled “What Will 2017 Bring?: Employment Law in the New Year,” has met HR Certification Institute Institute’s® (HRCI®) criteria for recertification credit pre-approval.

This entry was posted in Discrimination, Harassment, Policies, Retaliation, Title VII. Bookmark the permalink.

Leave a Reply

Your email address will not be published. Required fields are marked *