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On Oct. 2, the Equal Employment Opportunity Commission (EEOC) released proposed enforcement guidance on harassment in the workplace, and the proposed guidance has been receiving quite a bit of attention. This begs the question: What exactly should employers be doing to stay compliant at this time?

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Although the guidance is only proposed and still needs to go through the public comment period and final approval process, the guidance remains open for comment only until Nov. 1. Therefore, we recommend that employers start updating their policies and practices in a manner that is compliant with the guidance, which not only summarizes many of the requirements that have been in place for decades but also addresses some changes in the modern workplace as well as developments in recent employment case law.

The entire 144-page document covers a lot of territory; however, we will address some of the critical points that the guidance offers as related to questions employers often inquire about, particularly in light of recent changes in the workplace and in the law:

The guidance recognizes that Title VII of the 1964 Civil Rights Act’s (Title VII) prohibition on sex discrimination extends to discrimination based on sexual orientation and gender identity, and it clarifies that sex-based discrimination, as it pertains to pregnancy and other “related medical conditions,” includes an employee’s decisions regarding birth control and abortion.

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The guidance provides a variety of examples of harassment, including how technology, social media and other online content can contribute to a hostile work environment, as well as how offensive conduct (even if not directed at a complainant) can be harassment.

The guidance also clarifies risks of liability in harassment cases, another concept that is often misunderstood by employers. The guidance breaks this down by who the harasser is, namely:

The guidance also goes into great detail about the use of the <em>Faragher-Ellerth</em> affirmative defense, including the employer’s duty of reasonable care as well as the employee’s failure to take advantage of preventive or corrective opportunities.

Although this guidance is exceptionally long, it does offer some clarity via relatable examples, and it gives employers a reason to update their policies and processes to address issues that are particularly relevant in the modern workplace. While employers don’t need to read the entire 144-page guidance, they can (and should) rely on their legal counsel to do so. To that end, BakerHostetler’s Labor and Employment Practice Group is available to help.

EEOC’s Proposed Enforcement Guidance on Workplace Harassment – What Should Employers Be Doing as a Result?

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