Juries are handing down larger and larger judgments in bullying and sexual harassment lawsuits against employers.
The stakes are high for any company that does not take complaints about harassment and bullying seriously and nip it in the bud if detected.
And now the stakes could become even higher after the Equal Employment Opportunity Commission proposed new guidance on preventing, identifying and eradicating workplace harassment.
The proposed guidance, if enacted, will likely give the EEOC more ammunition when pursuing harassment complaints against employers.
Under the proposed rules, employers are urged to take active steps to minimize “known or obvious risks of harassment” and failure to do so could make it difficult to defend the case.
In other words, while employers should respond promptly to harassment allegations, the EEOC says they actually have a duty to address conduct before it rises to a level at which the employer has to take action.
The proposed enforcement guidelines also require employers to take all complaints seriously and address them with prompt and thorough investigations.
All employers should have policies in place that allow employees to easily file complaints about harassment and not be fearful of losing their jobs for making the reports.
With the new guidance, the EEOC will not only look at how the employer is moving to correct the harassment, but also what it should have done to head it off before it became a problem.
Additional nuance
There is also another nuance in the guidance. As you know, Title VII of the Civil Rights Act of 1964 prohibits discrimination based on any protected characteristic like race, national origin, religion, sex, age, disability and gender.
Under the proposed guidance, the EEOC would recognize claims for harassment based on the perception that an individual has a particular characteristic, even if that perception is incorrect.
Also, any bases for a harassment claim would also create a right of action for an associational discrimination claim. That is, the EEOC recognizes claims of harassment based on association with individuals outside the complainant’s protected class.
The commission also indicates in the proposed enforcement guidance that harassment based on the intersection of two or more protected classes (for example, race and gender) is prohibited.
The proposed rules also set for the thresholds for:
- Bringing hostile work environment claims
- Causation standards
- Holding an employer liable for hostile work environment claims
- Systemic “pattern and practice” harassment claims
The guidance also sets forth five “promising practices,” which the EEOC characterizes as core principles for employers to employ in preventing harassment in the first place.
- Committed, engaged leadership
- Consistent and demonstrated accountability
- Strong and comprehensive harassment policies
- Trusted and accessible complaint procedures
- Regular, interactive training tailored to the audience and organization
The EEOC notes that instituting these practices alone is not a defense against harassment claims, but if they are in place, the agency can better discern whether you have a culture that would reduce the chances of harassment occurring in the first place.
After the proposed guidance is finalized and enacted, it will replace the sexual harassment section of the current EEOC Compliance Manual.
Also, while the new guidance does not have the full force of a regulation, it can be useful for you to understand how the agency will investigate and potentially litigate harassment claims.
What you can do
- Implement and regularly update your anti-harassment and discrimination policies, and ensure they are accessible to and understood by all employees.
- Hold anti-harassment and discrimination training for all staff members.
- Have clear procedures for making complaints without fear of retribution.
- Use best practices when investigating claims.
- Ensure appropriate conduct is role-modelled by management.
