EEOC Releases Proposed Revisions to Guidelines on Workplace Harassment

The Equal Employment Opportunity Commission (EEOC) is the federal agency charged with enforcing various employment statutes, including the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964. In addition to the statutory language of Title VII and the court decisions interpreting it, the EEOC has developed its own regulations and guidelines regarding investigation and enforcement. The agency’s guidelines regarding harassment currently date from the 1990s, but it released proposed revisions to those guidelines earlier this year. It does not appear that the agency has adopted the new guidelines, but they offer a useful look at its priorities regarding harassment and discrimination, including New York City sexual harassment situations.

Title VII prohibits discrimination in employment on the basis of several factors, including sex. Amendments to the statute and Supreme Court decisions have expanded Title VII’s definition of “sex discrimination” to include a wide range of acts, including pregnancy discrimination, sex stereotyping, and sexual harassment. An employer violates Title VII when an executive, manager, or supervisor harasses an employee because of their sex, such as by making inappropriate remarks or demands of a sexual nature, or when an employer knows that such conduct is occurring between coworkers but fails to take reasonable action to remedy the situation.

The EEOC’s “Policy Guidance on Current Issues of Sexual Harassment” was issued on March 19, 1990. The agency first identified sexual harassment as a violation of Title VII in 1980, six years before the Supreme Court recognized it as such in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). The purpose of the 1990 guidance documents was to build on the agency’s definition of sexual harassment in light of Vinson. The document addressed several specific questions, including how to determine when sexual conduct is “unwelcome” and whether a work environment is “hostile.”

The groundwork for the new proposed guidelines was laid in 2015, when the EEOC appointed a Select Task Force to review the existing guidelines. It reported its findings in June 2016, placing an emphasis on training to improve accountability for reporting incidents of harassment (“bystander intervention training”) and acting on reported incidents. Training, the report stated, should be geared towards “reduc[ing] workplace harassment,” rather than “simply avoiding legal liability.” The EEOC’s “Strategic Enforcement Plan for 2017-2021” included “preventing systemic harassment” as one of six “substantive area priorities.”

The proposed guidance document repeats the five “core principles” identified by the task force, which can be broadly summarized as leadership, accountability, harassment policy, complaint procedures, and training. It also states the EEOC’s policy that employers have a duty to respond to harassment complaints even if the allegations do not appear to meet the legal standard under Title VII because of the possibility of escalation in future encounters between the alleged harasser and the complainant. The document addresses this duty in the context of an employer’s affirmative defense to a harassment allegation.

The EEOC made the proposed guidance available to the public for comment in January 2017. The comment period closed in March, and it appears that the agency withdrew the document from consideration for now.

Phillips & Associates’ knowledgeable and skilled sexual harassment lawyers advocate for job applicants, employees, and former employees in the New York City area, representing our clients in claims for sexual harassment and other unlawful workplace practices. To schedule a free and confidential consultation to discuss your case, contact us today online or at (212) 248-7431.

More Blog Posts:

Sexual Harassment Lawsuit Filed in New York City Court Alleges Verbal, Physical Harassment, New York Employment Attorney Blog, September 19, 2017

New York City Sexual Harassment Complaint Alleges Harassment by Female Executive Against Female Employees, New York Employment Attorney Blog, September 13, 2017

Lawsuit Alleges Widespread Sexual Harassment in Tech Company, New York Employment Attorney Blog, September 6, 2017

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