New EEOC Harassment Guidelines Offer Roadmap to Prevention

On January 10, 2017 the Equal Employment Opportunity Commission (“EEOC”) announced they are seeking public input on their proposed “Enforcement Guidance on Workforce Harassment.” The proposed Guidance consolidates and replaces various old and somewhat outdated guidelines issued by various federal agencies.

EEOC says that in light of the increasing number of harassment charges they are receiving (over 27,000 in fiscal year 2015), the time is right for comprehensive directives.

What the Guidance Says

Although there is nothing new or surprising in the Guidance, it nevertheless provides a good compendium of the practices that EEOC will be looking for to determine whether an employer maintains an effective harassment prevention program.

In addition, it offers an overview of the vast landscape of behaviors that might contribute to a harassment claim, and includes a number of less frequent but still troubling issues such as harassment based on the perception that someone is within a protected class, harassment by independent contractors, customers and other third parties, and harassment instigated via social media on employees’ personal sites.

The Guidance ends with EEOC’s list of “promising practices” designed to implement their five core principles of harassment prevention, namely:

  • Committed and engaged leadership;
  • Consistent and demonstrated accountability;
  • Strong and comprehensive harassment policies;
  • Trusted and accessible complaint procedures; and
  • Regular, interactive training tailored to the audience and the organization.

Harassment policies and complaint procedures are particular points of emphasis in the Guidance.

Effective Harassment Policies

EEOC outlines the features of an effective harassment policy, which include:

–  An unequivocal statement that harassment based on any legally protected characteristic is prohibited and will not be tolerated;

–  An easy-to-understand description of prohibited conduct, including examples;

–  A description of the organization’s harassment complaint system, including multiple (if possible), easily-accessible reporting avenues;

–  A statement that employees are encouraged to report conduct that they believe constitutes unlawful harassment (or that, if left unchecked, may rise to the level of unlawful harassment), even if they are not sure that the conduct violates the policy;

–  A statement that the employer will provide a prompt, impartial, and thorough investigation;

–  A statement that the identity of individuals who report harassment, alleged victims, witnesses, and alleged harassers will be kept confidential to the extent possible, consistent with a thorough and impartial investigation and with relevant legal requirements;

–  A statement that employees are encouraged to respond to questions or to otherwise participate in investigations into alleged harassment;

–  A statement that information obtained during an investigation will be kept confidential to the extent possible, consistent with a thorough and impartial investigation and with relevant legal requirements;

–  An assurance that the organization will take immediate and proportionate corrective action if it determines that harassment has occurred; and

–  An unequivocal statement that retaliation is prohibited and will not be tolerated, and an assurance that alleged victims, individuals who in good faith report harassment or participate in investigations, and other relevant individuals will be protected from retaliation.

Such policies must be written and communicated in a clear, easy-to-understand style and format; translated into all languages commonly used by employees; Provided to employees upon hire and during harassment trainings, posted centrally and periodically reviewed and updated as needed,

Harassment Complaint System

An effective harassment complaint system, in the EEOC’s view, is one that:

  • 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.

Bottom Line

At 75 pages, the Guidance is a bit imposing but it is full of very useful information on proactive harassment prevention, proper enforcement and effective training.  Once public comment is taken and the final version is issued, every employer is well-advised to go through the Guidance and see where their policies and procedures could be tuned up.