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EEOC Proposes New Enforcement Guidance on Workplace Harassment

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On September 29, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) issued proposed new guidance for determining whether workplace harassment violates Title VII of the Civil Rights Act (Title VII) or other equal employment opportunity (EEO) laws enforced by the agency. For employers subject to these laws, the new guidance does not impose any new obligations on employers but instead aims to clarify certain legal principles under existing federal fair employment laws and provide insight into how the EEOC will enforce compliance with anti-harassment provisions.

Background: Title VII is a federal law that prohibits employers with 15 or more employees from discriminating against or harassing individuals based on certain characteristics. These characteristics, also known as protected traits, include race, color, religion, national origin and sex (including sexual orientation, transgender status and pregnancy). Other EEO laws protect individuals from discrimination or harassment based on disability, age (40 and older) and genetic information.

Between 1986 and 1999, the EEOC issued several documents designed to guide agency staff members who investigate claims of harassment under EEO laws. The agency also issued proposed enforcement guidance on these topics in 2017, but it was never finalized.

Proposed Updates: In the newly proposed guidance, the EEOC provides several updated examples to reflect a wide range of modern scenarios and address emerging issues, such as how social media postings and other online content may contribute to a hostile work environment. It also incorporates current case law, including the U.S. Supreme Court’s 2020 decision on sexual orientation and gender identity in Bostock v. Clayton County, into the new proposed guidance. The document describes preventive and corrective actions an employer may take to help establish defenses against liability for workplace harassment.

Next Steps: The proposed guidance was published in the Federal Register on October 2, 2023. The public comment period for the EEOC’s proposed guidance is currently scheduled to remain open until November 1, 2023. After reviewing public input, the Commission will consider appropriate revisions before finalizing the guidance. If finalized, the guidance will not have the binding force of the law. Rather, it’s intended to provide clarity to the public about EEOC policies and existing requirements under the law.

WHAT SHOULD I DO IF AN EMPLOYEE REPORTS HARASSMENT TO ME?

Once an employer knows that an employee is being harassed, it has a responsibility to correct the situation and protect the employee from further harassment.

You should promptly and thoroughly investigate the claim. This may mean that interviewing the employee, the harasser, and any other witnesses. If you determine that the employee was harassed, you should take steps to stop the behavior from continuing, such as transferring the harasser to another location, terminating the harasser, training/counseling the harasser, etc. You also must make sure that the employee who complained is not punished, treated differently, or harassed for reporting harassment.

IS IT ILLEGAL FOR SOMEONE TO HARASS ANOTHER PERSON WHO IS THE SAME SEX, RACE, COLOR, NATIONAL ORIGIN OR RELIGION OR WHO HAS THE SAME DISABILITY?

Yes. It is illegal for people to harass others of their own sex, religion, race, color, national origin, or religion. It also is illegal for a person with a disability to harass other individuals with the same disability or genetic information or other disabilities or genetic information.

WHERE CAN I FIND THIRD PARTY TRAINING ON WORKPLACE HARASSMENT FOR MY EMPLOYEES?

Workplace harassment training is important for several reasons, but the most important reasons revolve around protecting employees from harassment, creating a safe and supportive work environment for all, and building a workplace culture of mutual respect.

The MBA offers a variety of discounted training for members, including Workplace Harassment training. We can come to your worksite, provide it virtually, or we can train at one of our convenient office locations (Erie, PA or Cranberry Township, PA).

Tammy Lamary-Toman, JD, PHR
is the vice president and employment counsel for the
Manufacturer & Business Association. Contact her at
814/833-3200, 800/815-2660 or ttoman@mbausa.org.