On January 10, 2017, the United States Equal Employment Opportunity Commission (“EEOC”) announced that it is seeking public input on proposed “Enforcement Guidance” designed to address harassment in the workplace. The proposed Enforcement Guidance is available here for public comment until February 9, 2017.
This is the optimal time for employers to review and update their harassment complaint systems and harassment training. The EEOC has now laid out in one place, its guidance on how to handle harassment claims.
The EEOC developed the proposed Enforcement Guidance in response to increasing numbers of harassment charges in recent years, which included over 27,000 harassment charges filed by private sector employees in fiscal year 2015 alone. When finalized, the Enforcement Guidance is expected to replace a number of outdated EEOC guidelines that were first issued in the 1990s.
In today’s workplace, employers should review anti-harassment policies and training programs with a vigilant eye, while ensuring that any complaints are handled promptly and appropriately. As emphasized by the proposed Enforcement Guidance, employers should be aware of conduct that may trigger a workplace harassment claim, the threshold the employee must meet to prove a hostile work environment claim, as well as the basis for holding employers liable for harassment or a hostile work environment.
To address these concerns, the proposed Enforcement Guide suggests that an effective harassment complaint system:
- Is fully resourced, enabling the organization to respond promptly, thoroughly, and effectively to complaints;
- Is translated into all languages commonly used by employees;
- Provides multiple avenues of complaint;
- Provides prompt, thorough, and neutral investigations;
- Protects the privacy of alleged victims, individuals who report harassment, witnesses, alleged harassers, and other relevant individuals to the greatest extent possible;
- Includes processes to determine whether alleged victims, individuals who report harassment, witnesses, and other relevant individuals are subjected to retaliation, and imposes sanctions on individuals responsible for retaliation;
- Includes processes to ensure that alleged harassers are not prematurely presumed guilty or prematurely disciplined for harassment; and
- Includes processes to convey the resolution of the complaint to the complainant and the alleged harasser.
Employers are also urged to consider a number of factors before scheduling their next harassment prevention training:
- Is the training being managed by senior leaders?
- Has the training been repeated and reinforced regularly?
- Has the training been provided to employees at every level and location of the organization?
- Has the training been provided in all languages commonly used by employees?
- Has the training been tailored to the specific workplace and workforce?
- Is the training routinely evaluated by participants and revised as necessary?
- Does the training provide information about employees’ rights and responsibilities if they experience, observe, or otherwise become aware of conduct that they believe may be prohibited?
- Does the training provide explanations of the complaint process, including who must report any complaints of harassment and how to identify or prevent harassing behavior? and
- Does the training explain the range of possible consequences for engaging in prohibited conduct?
The EEOC hopes that by offering this advice, along with its definition of harassment, that employers and employees alike will be equipped with the knowledge and the means to reduce harassment in the workplace.
HR Legalist will update readers once the finalized Harassment Enforcement Guidance is put into effect. Employers concerned about the harassment complaint process, or related policies and training procedures should seek the advice of experienced employment counsel.
Lisa Koblin is an attorney in Obermayer’s Labor Relations and Employment Law Department who focuses her practice on defending employers in litigation matters and providing counseling to resolve employment-related disputes. She can be reached at 215-665-2925 or email@example.com.