On February 3, 2017, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced that it would extend the notice and comment period for its proposed enforcement guidelines on unlawful harassment under EEOC-enforced employment discrimination laws. The extension, which provides an additional forty (40) days for public input, gives in-house counsel and human resources professionals a good opportunity to review and familiarize themselves with the standards by which the EEOC is likely to evaluate harassment-based discrimination claims.
The EEOC’s proposed guidance (“Guidance”), released on January 10, 2017, follows up on the agency’s June 2016 Report of the Co-Chairs of the EEOC’s Select Task Force on the Study of Harassment in the Workplace (“June 2016 Report”). The June 2016 Report found that discriminatory harassment remains a pervasive problem in the American workforce, amounting to almost a third of all discrimination charges the EEOC received in FY 2015.
The Guidance outlines the agency’s position, with accompanying caselaw, on the following topics related to discriminatory harassment:
- Covered bases for discrimination. The Guidance identifies certain bases for harassment that, in the EEOC’s view, may amount to unlawful race, national origin, religious, sex, age, disability, or genetic information. Examples include black hairstyles (race discrimination), sexual orientation and/or gender identity (sex discrimination), and foreign accent or cultural diet (national origin discrimination).
- Establishing Causation. The Guidance sets forth several examples of harassment the EEOC considers to be sufficiently “connected” to a protected classification, such as: derogatory or hostile comments regarding a protected classification, whether or not the comments are directed against a specific employee; ostensibly neutral conduct that is related to an overall pattern of class-based harassment; harassment that begins or escalates shortly after learning of the complainant’s protected status; and higher productivity standards for women as compared to similarly situated male employees.
- “Severe” or “pervasive” harassment. In explaining when conduct is sufficiently severe and/or pervasive to amount to unlawful harassment, the Guidance identifies certain actions that could create a hostile work environment even if they occur only once: sexual assault, sexual touching of an intimate body part, physical violence or threats, use of symbols of violence or hatred, use of the “n-word” by a supervisor, use of animal imagery, and threats to deny job benefits for rejecting sexual advances.
- Subjectively and objectively hostile work environment. In its Guidance, the EEOC agrees that a harassment plaintiff must establish that s/he actually and reasonably perceived the conduct to be severe or pervasive. The EEOC disagrees, however, with the various U.S. Circuit Courts of Appeals that have required plaintiffs to separately establish that the harassing conduct was “unwelcome.” The Guidance also notes that the EEOC does not consider “prevailing workplace culture”—i.e., a longstanding workplace habit of engaging in relatively crude, coarse, or vulgar conduct—to excuse conduct that would otherwise amount to unlawful harassment.
- Relatedness of the harassing conduct to the work environment. The Guidance discusses when the EEOC will find conduct that occurs outside an employee’s regular place of work, or in a non-work-related context, as contributing to a hostile work environment for which the employer may be held responsible. Among other examples, the Guidance states the EEOC might consider conduct on a private social media platform as contributing to a hostile work environment if coworkers discussed the conduct in the workplace—even if the social media postings occurred during non-working time.
- Supervisor/coworker liability. The Guidance reiterates the four standards of harassment liability based on the relationship of the harasser to the employer:
- The employer’s proxy or alter ego (strict liability);
- The employer’s supervisor who engages in a “tangible” employment action against the victim (vicarious liability);
- The employer’s supervisor who engages in harassment but does not engage in a “tangible” employment action against the victim (vicarious liability, subject to the affirmative defense that the employer exercised reasonable care to prevent and correct harassment and the employee failed to take advantage of any preventive or corrective opportunities);
- Non-supervisors (liability if the employer negligently failed to prevent or correct the harassment).
- Systemic harassment and pattern-or-practice claims. The Guidance explains the theories of systematic or widespread discrimination, in which the employer subjects all employees of a protected group to the same discriminatory circumstances in the workplace as a whole.
- Best practices to prevent harassment. The Guidance reiterates the holdings from the EEOC’s July 2016 Report, including five principles for preventing and addressing harassment: committed and engaged leadership; consistent and demonstrated accountability; strong and comprehensive harassment policies; trusted and accessible complaint procedures; and regular, interactive training tailored to the audience and the organization.
Public comments originally were due by February 9, 2017, but the EEOC has now extended the deadline until March 21, 2017. The agency already has received approximately 70 comments from individuals and organizations. Comments are publicly posted, and may be submitted and viewed here.