Help Wanted – EEOC Seeks Public Comment on Proposed Anti-harassment Guidance

In response to an increase in claims of workplace harassment, the U.S. Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing federal anti-discrimination laws including Title VII, issued a 75-page Proposed Enforcement Guidance on Harassment on Jan. 10.

The majority of the guidance deals with matters previously addressed by the EEOC, including the elements of harassment; the list of protected characteristics under federal law, including the EEOC’s interpretation that ‘sex discrimination’ includes one’s sexual orientation and gender identity; and the defenses available to an employer facing a harassment suit.

Although it has a long-standing practice of issuing harassment-enforcement guidance, the EEOC appears to take things a step further in this proposed guidance and makes suggestions for employers, including policy and training suggestions, among others. Before providing specific suggestions in the guidance, the EEOC begins by articulating that senior leaders are the “cornerstone of a successful harassment-prevention strategy,” and that they have to express frequently and with clarity that harassment will not be tolerated.

As part of that strategy, the EEOC notes that employers must allocate resources and time for harassment-prevention efforts and regularly assess harassment risks and take necessary steps to eliminate them. So, how might an employer implement and enforce such a strategy?

First, the EEOC suggests that employers adopt an anti-harassment policy. According to the EEOC, the policy should include an express statement that harassment on the basis of any protected characteristic is illegal; examples of harassment; details regarding the employer’s complaint system, including how to report; language that encourages employees to report any harassment; an indication that the employer will conduct a prompt and thorough investigation into the allegations and assurance that it will take appropriate corrective action; and a statement that retaliation is prohibited against those who file complaints and/or participate in investigations. Additionally, the EEOC recommends, among other things, that the policy be written and communicated to all employees.

Massachusetts employers should already have an anti-harassment policy that contains the criteria suggested by the EEOC. Under Massachusetts law, employers are required to have a sexual-harassment policy that includes a number of the same criteria. Employers are also required to distribute that policy to all employees both at time of hire and annually. As a practical matter, however, savvy employers have adopted and issued broader anti-harassment policies that include all types of unlawful harassment, as the EEOC suggests. Regardless, this proposed guidance should signal to employers that it is time to review their policies and consider whether changes would be appropriate.

Second, and in follow-up to its suggestion that details of the complaint system be included in the policy, the guidance makes recommendations regarding how an employer should structure its complaint system. Under state and federal law, an employer has a duty to promptly and thoroughly investigate all allegations of harassment and discrimination. As a result, every employer should already have a protocol in place for doing so. For example, some employers choose to hire a third party to conduct investigations, while others have an internal person or department such as Human Resources handle investigations.

In its guidance, the EEOC recommends that employers fully resource the complaint system; provide multiple avenues for filing the complaint, such as listing a male and female to which complaints may be brought; have a process to ensure that the alleged harasser is not presumed guilty before the investigation is complete; and have a procedure for informing the complaining party and accused of the outcome of the investigation or corrective action to be taken, to the extent appropriate.

The EEOC also notes that, among other things, those responsible for receiving and investigating the complaints need to be well-trained and neutral, have authority and the resources to investigate, have the ability to make people feel comfortable, and keep adequate documentation during the investigation.

Lastly, the EEOC notes that, even if all employees know about the policy and complaint system, those are only part of an effective strategy to eliminate harassment. To be sure that employees understand what constitutes illegal harassment, the EEOC recommends regular and interactive training that is promoted by senior leaders and conducted and revised regularly. The training should include examples of unlawful harassment, information about employees’ rights, details of the complaint process, and the range of consequences for someone who engages in prohibited conduct. Additionally, because managers and supervisors have additional responsibilities under federal law (and state law too) when it comes to harassment complaints and investigations, the EEOC suggests that managers and supervisors undergo additional training that includes training on recognizing risk factors, methods for addressing harassment, and clear instructions regarding reporting harassment.

The proposed guidance and instructions for submitting comments are available at https://www.regulations.gov/docket?D=EEOC-2016-0009 . The EEOC recently sought public comment, and will review all feedback and consider making revisions prior to finalizing its guidance.