On Oct. 2, the Equal Employment Opportunity Commission (EEOC) released proposed enforcement guidance on harassment in the workplace, and the proposed guidance has been receiving quite a bit of attention. This begs the question: What exactly should employers be doing to stay compliant at this time?

Although the guidance is only proposed and still needs to go through the public comment period and final approval process, the guidance remains open for comment only until Nov. 1. Therefore, we recommend that employers start updating their policies and practices in a manner that is compliant with the guidance, which not only summarizes many of the requirements that have been in place for decades but also addresses some changes in the modern workplace as well as developments in recent employment case law.

The entire 144-page document covers a lot of territory; however, we will address some of the critical points that the guidance offers as related to questions employers often inquire about, particularly in light of recent changes in the workplace and in the law:

• The guidance recognizes that Title VII of the 1964 Civil Rights Act’s (Title VII) prohibition on sex discrimination extends to discrimination based on sexual orientation and gender identity, and it clarifies that sex-based discrimination, as it pertains to pregnancy and other “related medical conditions,” includes an employee’s decisions regarding birth control and abortion.

• The guidance provides a variety of examples of harassment, including how technology, social media and other online content can contribute to a hostile work environment, as well as how offensive conduct (even if not directed at a complainant) can be harassment.
  • For instance, the guidance explains that a hostile work environment can arise virtually (e.g., when comments are made during a video meeting or certain imagery is visible in an employee’s workspace during a video meeting).
  • The guidance also clarifies that harassing conduct can constitute a hostile work environment even if the behavior isn’t directed at the complainant and even if the conduct occurs outside the complainant’s presence and the complainant becomes aware of the conduct during their employment. While this is not a new legal concept, it is often misunderstood by employers.

• The guidance also clarifies risks of liability in harassment cases, another concept that is often misunderstood by employers. The guidance breaks this down by who the harasser is, namely:
  • If the harasser is a proxy or alter ego of the employer, the employer is automatically liable for the hostile work environment, meaning that there is no defense to liability.
  • If the harasser is a supervisor and the hostile work environment includes a tangible employment action against the victim, the employer is vicariously liable for the harasser’s conduct and there is no defense to liability.
  • If the harasser is a supervisor (but not a proxy or alter ego) and the hostile work environment does not include a tangible employment action, the employer is vicariously liable for the actions of the harasser, but the employer may limit its liability or damages if it can prove the Faragher-Ellerth affirmative defense.
  • If the harasser is any person other than a proxy, alter ego or supervisor, the employer is liable for the hostile work environment created by the harasser’s conduct if the employer was negligent in that it failed to act reasonably to prevent the harassment or to take reasonable corrective action in response to the harassment when the employer was aware or should have been aware of it.

• The guidance also goes into great detail about the use of the Faragher-Ellerth affirmative defense, including the employer’s duty of reasonable care as well as the employee’s failure to take advantage of preventive or corrective opportunities.
  • In assessing whether the employer has taken adequate steps, the inquiry typically begins by identifying the policies and practices an employer has instituted to prevent harassment and to respond to complaints of harassment, including promulgating a policy against harassment, establishing a process for addressing harassment complaints, providing training to ensure employees understand their rights and responsibilities, and monitoring the workplace to ensure adherence to the employer’s policy. This is one of the reasons why having a strong and effective anti-harassment policy, a solid complaint process, and good trainings is so important, and the guidance discusses the minimum requirements for effective policies, complaint processes and trainings.
  • Regarding the employee’s failure to take advantage of preventive or corrective opportunities, the guidance explains that there may be reasonable explanations for an employee’s delay in complaining or failure to utilize the employer’s complaint process. For example, an employee’s failure to use the employer’s complaint procedure could be reasonable if that failure was based on employer-created obstacles to filing complaints, a reasonable belief that the complaint process was ineffective or a reasonable fear of retaliation as a result of complaining about harassment. The guidance provides concrete examples for each of these.
  • The guidance also clarifies that, to avoid liability, an employer must take corrective action that is “reasonably calculated to prevent further harassment” under the particular circumstances at that time. Corrective action should be designed to stop the harassment and prevent it from continuing, and the reasonableness of the action depends on the particular facts and circumstances at the time when the action is taken, which could include the following considerations: the proportionality of the corrective action, the authority granted the harasser, whether harassment stops, the effect on the complainant, options available to the employer and the extent to which the harassment was substantiated. The guidance again provides concrete examples for each of these.

Although this guidance is exceptionally long, it does offer some clarity via relatable examples, and it gives employers a reason to update their policies and processes to address issues that are particularly relevant in the modern workplace. While employers don’t need to read the entire 144-page guidance, they can (and should) rely on their legal counsel to do so.

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