Yesterday, the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces our country’s federal anti-discrimination laws, released for public input a proposed enforcement guidance addressing unlawful harassment. You can read the 75-page proposed guidance document at https://www.regulations.gov/docket?D=EEOC-2016-0009 and provide comments to the EEOC until February 9, 2017.
The last guidance documents promulgated by the EEOC were published in the 1990’s so this release provides a much-needed update including specific examples of unlawful harassment, legal standards, and best practices.
What is harassment?
“Unlawful” harassment can be defined by what it is not as well as what it actually is. Unlawful harassment is not when your supervisor or boss yells at you and you think (s)he just doesn’t like you. It is not your co-workers failing to ask you to lunch and ignoring you so that you feel you work in a “hostile work environment.” It is not a supervisor who annoys you.
As the EEOC’s proposed guidance states and as we have written about in this blog, harassment is only covered by the EEO laws if it is based on an employee’s legally protected characteristics. In other words, the unlawful harassment under federal law must be because of the employee’s age, race, sex, disability or another protected characteristic. The proposed guidance gives detailed explanations and helpful specific case examples.
Moreover, preventing systemic harassment continues to be one of the EEOC’s national enforcement priorities set forth in its Strategic Enforcement Plan for 2017-2021. So how is a company supposed to be prepare for this potential additional scrutiny of its workplace practices? Read this blog! Just kidding (sort of) — the proposed guidance provides several valuable tips.
Employees want to understand when harassment results in discrimination, as stated in this release, and we recommend that employers review the “promising practices” section, which contains many of the recommendations that Rich Cohen and I have made in this blog.
These include checklists to prevent and respond to workplace harassment; here are a few:
2) Accountability by leaders, as we discussed here about minimizing gender bias, to demonstrate commitment to maintain a culture of respect in which harassment based on any of these protected characteristics is not tolerated;
3) A clear, comprehensive harassment and retaliation policy describing prohibited conduct and providing examples as well as step-by-step complaint procedures, as both Rich and I mention in most of our posts; and
4) Regular, interactive training (about which we practically preach here and here), tailored to your workplace and promoted by senior leaders, that teaches managers how to recognize and respond to conduct that could be construed as or lead to unlawful harassment.
The specifics in these checklists clarify step-by-step procedures and elaborate on the type of behavior your organization should investigate and, if warranted, deem intolerable. What’s clear from these suggestions is also that a workplace free of unlawful harassment must come from leadership every step of the way. I urge all employers and their HR departments to check it out!