On January 10, 2017, the Equal Employment Opportunity Commission (EEOC) announced that it had released for public input its proposed enforcement guidance on unlawful harassment under federal employment discrimination laws. The proposed guidance can be found here.
Preventing harassment has been an EEOC enforcement priority since 2013, and was included as a priority in its Strategic Enforcement Plan for 2017-2021. According to the EEOC, between 2012 and 2015, the percentage of private sector charges that included allegations of harassment increased from roughly 25 percent to more than 30 percent of all charges. The EEOC established a task force in January 2015 to analyze workplace harassment and to identify prevention strategies. The proposed guidance is a companion piece to the task force’s report and recommendations and is said to be a helpful resource that clearly sets forth the EEOC’s position on harassment law and identifies “promising practices” for employers.
The document describes the EEOC’s interpretation of federal EEO laws based on its analysis of how courts have interpreted and applied those laws to the facts of specific cases. From its analysis, the EEOC identifies and focuses on three components of a hostile work environment claim:
- Covered bases and causation: Was the conduct based on the complainant’s legally protected status, such as race, color, national origin, religion, sex, age, disability and genetic information. Under the heading of sex, the EEOC includes gender, sex stereotyping, pregnancy, childbirth or related medical conditions, gender identity and sexual orientation;
- Hostile work environment threshold: Was the conduct sufficiently severe or pervasive to create a hostile work environment; and
- Liability: Is there a basis for holding the employer liable for the hostile work environment.
The guidance provides numerous examples of what the EEOC states would and would not constitute violations of federal laws, and it describes thresholds for establishing whether an employer would be held liable.
The EEOC will accept comments on the proposed guidance through February 9 at www.regulations.gov.