The Equal Employment Opportunity Commission ("EEOC") has published draft enforcement guidance regarding workplace harassment entitled "Proposed Enforcement Guidance on Harassment in the Workplace." If made final, this would be the EEOC's first updated guidance since the 1999 "Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors."
The proposed guidance lays out in detail the legal standards applicable to harassment claims under the federal law and provides a variety of illustrative examples coupled with references to recent case law.
One of the most notable aspects of this guidance is the incorporation of the Supreme Court's decision in Bostock v. Clayton County. In Bostock the Supreme Court ruled that Title VII's protections extended to claims for discrimination on the basis of sexual orientation and gender identity. Although that case dealt with a discriminatory termination, and not harassment, in the proposed guidance, the EEOC has noted: "[t]he Supreme Court's reasoning in the [Bostock] decision logically extends to claims of harassment."
The proposed guidance unequivocally states that Title VII extends to claims for harassment on the basis of sexual orientation or gender identity, "including how that identity is expressed." Beyond these overt protections for LGBTQ+ employees, the proposed guidance also expressly acknowledges pregnancy, childbirth, and "related medical conditions," encompasses harassment claims based on a woman's reproductive decisions, including those related to contraception and abortion.
The EEOC's proposed guidance lays out a playbook for how employers can show that they have exercised "reasonable care" both to prevent and correct harassment by describing in detail features of effective anti-harassment policies, processes, and training.
But the guidance is not final just yet. It is anticipated that the guidance will be published in the Federal Register on Monday, October 2, and once published the draft guidance will be open for public comment for 30 days.
Although the guidance itself will not be legally binding, employers would be wise to review this lengthy document and understand myriad ways that employees can pursue harassment claims against employers. If anything, it is a reminder that the best defense to these kind of claims is working to foster a respectful workplace and maintaining effective policies to mitigate issues that may arise. If you have any questions concerning compliance of your business's current harassment policies or procedures, please contact a member of Kelley Drye's Labor and Employment team.
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