EEOC Issues Proposed Enforcement Guidance on Unlawful Harassment

On January 10, 2017, The Equal Employment Opportunity Commission (EEOC) issued a Proposed Enforcement Guidance on Unlawful Harassment. The proposed guidance gives us insight into how the EEOC will likely evaluate and prosecute administrative complaints. According to the EEOC, the purpose of the enforcement guidance is to “explain the legal standards applicable to harassment claims under federal employment discrimination laws.” The laws enforced by the EEOC prohibit harassment based on race, color, religion, sex, national origin, disability and age.  However, the proposed guidance seems to extend harassment claims to actions based on sex stereotyping, sexual orientation, gender identity, genetic information and pregnancy—categories not explicitly included in Title VII—as well as harassment actions involving a “perceived” membership in a protected class (even if that perception is incorrect). When effected, the proposed guidance will require employers to implement programs to assess and eliminate known or obvious risks of workplace harassment.

In the proposed guidance, the EEOC conveniently identifies five core principles purported to effectively address and prevent harassment:

(1) Committed and engaged leadership;
(2) Consistent and demonstrated accountability;
(3) Strong and comprehensive harassment policies;
(4) Trusted and accessible compliance procedures; and
(5) Regular, interactive training, tailored to the audience and organization.

Heeding these principles will help employers to retain defenses to harassment claims and to work towards eliminating unlawful harassment in their workplace. The EEOC has established a March 21 deadline for public comments on the proposed enforcement guidance. Interested employers can submit comments to www.regulations.gov.  Importantly, once the final rule is published, employers will need to re-evaluate their policies and complaint procedures and consider updating their anti-harassment and ant-discrimination trainings for employees.