How do you know what your employer is supposed to do to prevent employment harassment? Is there anything you can do to show employers what they should be doing without filing a complaint? The new EEOC proposed guidance is a good place to start.

In this post I will discuss the newly proposed Enforcement Guidance on Unlawful Harassment published by the EEOC and how it will help employees and employers prevent and respond to harassment. I will explain how employees can use this guidance to their advantage with the help of skilled employment discrimination attorneys.

The EEOC Issues Proposed Employment Harassment Guidelines

On January 10, 2017 the Equal Employment Opportunity Commission (EEOC) issued new proposed guidance on employment harassment policies. The EEOC is responsible for enforcing federal civil rights laws protecting employees from harassment based on “race, color, religion, sex, national origin, disability, age, or genetic information.” However, over time, the way harassment happens, both at work and online, has changed. That means the agency’s policies need to change too. The proposed guidelines are designed to update several outdated EEOC policies, in light of the changing workplace.

New Guidelines Respond to Increasing Harassment Claims

From 2012 to 2015, the number of private harassment claims filed with the EEOC went up dramatically. In 2015, the EEOC received 27,983 private sector harassment claims. That’s over 30% of all charges filed that year. Among federal government employees, 44% of complaints included harassment. EEOC Chair Jenny R. Yang said in a statement:

“Harassment remains a serious workplace problem that is the concern of all Americans. It is important for employers to understand the actions they can take today to prevent and address harassment in their workplaces.”

To combat this trend, the new EEOC guidance breaks down harassment claims into 3 elements:

• Is the conduct based on a legally protected status?
• Does the conduct create a hostile work environment (because of severity or frequency)?
• Is the employer responsible?

To help employers avoid problems at their workplace, the guidelines recommend an effective harassment complaint system which:

• Has the resources to respond effectively, promptly, and thoroughly to complaints;
• Is accessible in all languages commonly used by employees;
• Allows multiple routes to file complaints;
• Uses neutral investigators;
• Protects the privacy of victims, alleged harassers, witnesses, and those who report behavior;
• Protects those accused of harassment against premature assumptions of guilt.
• Prevents retaliation against victims, witnesses, and those who report behavior.
• Properly informs the person complaining about how the matter is resolved.

Online Employment Harassment

As business turns increasingly online, the EEOC has had to begin responding to claims of harassment occurring outside the workplace, including on social media. This has resulted in a broad definition of what is included in employment harassment. The proposal recommends that employers train employees on civility and explains that this includes online interactions. Civility trainings should be:

• Encouraged by senior leadership
• Reinforced regularly
• Attended by all levels of employees
• Provided in all languages commonly used by employees
• Conducted in person or using active engagement tools
• Tailored to the needs of each workplace
• Evaluated by participants and updated accordingly

Civility Policies May Conflict With Existing Policies

Some legal experts say that the new EEOC employment harassment guidelines could contradict recent decisions by the National Labor Relations Board. The NLRB has taken the position that uncivil language used in the course of a labor dispute is protected speech. Regulating that language has resulted in at least one wrongful discharge claim. That could result in a legal challenge to settle the dispute between agencies. At least one member of the EEOC’s Select Task Force on the Study of Harassment in the Workplace seems to welcome that challenge. Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City, has been quoted as saying:

“‘Over time I expect and hope the board will cut back on its absurd uncivil treatment toward civility and its coddling of harassers.”

EEOC Invites Public Comment

The EEOC’s proposed language issued in January isn’t necessarily the final word on the matter. The agency is inviting public comment on their proposed guidelines until February 9, 2017. Members of the public are invited to submit input (in narrative form) at www.regulations.gov or by writing to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.

In the meantime, the EEOC and NLRB representatives may well resolve their differences. In either case, the EEOC will likely issue a final version soon after the deadline.

Using the Employment Harassment Guidance at Work

Even in rough form, the EEOC’s guidelines provide a starting point for conversations with an employer about harassment in the workplace. If you believe your supervisor or business isn’t living up to these standards, an employment discrimination attorney may be able to help. Contact Eisenberg & Baum, LLP, to schedule a consultation and find out how you can make the proposed guidance work for you.