EEOC Seeks Comment on Proposed Unlawful Harassment Guidance

Labor & Employment @lert

Date: February 13, 2017

Key Notes:

  • EEOC issued Proposed Enforcement Guidance on Unlawful Harassment, which includes policy and training suggestions for employers.
  • Seeking public comment until March 21, 2017.
  • Employers should consider reviewing harassment policies, complaint systems and training.


The U.S. Equal Employment Opportunity Commission (EEOC) released its Proposed Enforcement Guidance on Unlawful Harassment (Proposed Guidance), which explains the legal standards that apply to unlawful harassment claims under the federal employment discrimination laws. The Proposed Guidance is a response to an upsurge in harassment allegations the EEOC has received in recent years; for example, in 2015, nearly one-third of all charges included an allegation of harassment. Once adopted, the Proposed Guidance will supersede previous guidance the EEOC issued in the 1990s. The EEOC is seeking public comment on the 75-page Proposed Guidance until March 21, 2017.

The Proposed Guidance contains both familiar and new content. It reiterates:

  • Under what circumstances harassment is covered by Equal Employment Opportunity laws.
  • How causation is established in a harassment claim.
  • The elements of a harassment claim.
  • Examples of workplace harassment.
  • When an employer is liable for harassment, including employer defenses.
  • A discussion of systemic harassment.

The Proposed Guidance also provides “Promising Practices,” which are suggestions for measures employers may adopt to help prevent harassment, such as:

  • Leadership that is committed to and accountable for harassment prevention.
  • A comprehensive and effective harassment policy.
  • An effective and accessible harassment complaint system.
  • Effective harassment training.

For example, the EEOC states that an effective written harassment policy should be “clear” and “easy-to-understand,” translated into all languages spoken by an employer’s workforce, provided to employees upon hire and readily available, and periodically updated.

Employers should review the Proposed Guidance and consider providing comment to the EEOC. Further, even though the public comment period is still running, now is a good time for employers to consider implementing or updating their own Promising Practices to prevent harassment from occurring in their workplaces.

FOR MORE INFORMATION

For more information, please contact:

M. Scott Young
513.352.6617
Scott.Young@ThompsonHine.com

Lindsay Nichols
513.352.6512
Lindsay.Nichols@ThompsonHine.com

or any member of our Labor & Employment group.

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