Finally, the U.S. Equal Employment Opportunity Commission has voted to issue new guidance on workplace harassment.
Here is a copy of its proposed “Enforcement Guidance on Harassment in the Workplace.”
It’s been a long time coming.
This Law360 report notes that this new guidance is the first voted document the EEOC has issued on harassment since its “Enforcement Guidance on Vicarious Liability for Unlawful Harassment by Supervisors” in 1999, according to an EEOC spokesperson.
According to the EEOC press release, in 2017, the EEOC issued a technical assistance document, Promising Practices for Preventing Harassment, based on findings by the Select Task Force on the Study of Harassment in the Workplace established in 2015. In June 2016, former Commissioners Chai R. Feldblum and Victoria A. Lipnic presented their Report of the Co-Chairs of the Select Task Force on Harassment in the Workplace with findings and recommendations about harassment prevention strategies.
The EEOC’s latest proposed guidance is 152 pages, although most are endnotes. The EEOC describes it as reflecting notable changes in law, including the Supreme Court’s decision in Bostock v. Clayton County, the #MeToo movement, and emerging issues, such as virtual or online harassment.
I read everything up to the endnotes, and, spoiler alert, there’s nothing particularly groundbreaking. For example, the guidance states that sex-based harassment can include harassment based on a woman’s reproductive decisions, such as decisions about contraception or abortion. While that may trigger some people, courts have ruled this way for decades.
The Supreme Court in Bostock v. Clayton County confirmed that Title VII prohibits discrimination based on LGBT status. While Bostock wasn’t a harassment case, the EEOC notes that derogatory comments about gay men and lesbians can be actionable under Title VII even if they are not directed at a particular person (e.g., the victim overhears them in the office).
The guidance addresses various forms that hostile work environments based on her sex can take. For example, suppose supervisors engage in well-known, consensual sexual relationships with female subordinates. Assume that the supervisors reward the subordinates with promotions, awards, and other benefits. If another worker finds this favoritism offensive, they may have a tenable hostile work environment claim.
The EEOC also notes employers can be liable for non-work-related virtual or online harassment if the victim feels the effects in the workplace (e.g., by encountering their harasser at the office or discussing the behavior with others at work) or if bad actors use company communication systems to harass.
Check out the guidance, and let me know what you think. It’s good resource material and may be particularly helpful for newer employment law attorneys and human resource professionals.
Or comment on it publicly. The EEOC is accepting public comments until November 1.