On January 10, 2017, the United States Equal Employment Opportunity Commission (EEOC) issued proposed enforcement guidance on preventing workplace harassment for which it seeks input before implementation. The deadline for public comment on the proposed 75-page set of guidelines is February 9, 2017. Equal employment opportunity laws prohibit harassment based on an employee’s gender, race, national origin, religion, age, disability, and genetic history. The proposed enforcement guidance replaces a number of outdated EEOC guidelines in response to the increasing number of harassment charges in recent years. In the year 2015 alone, private sector employees filed approximately 27,000 charges. Prevention of systemic harassment continues to be one of the EEOC’s national enforcement priorities outlined in its Strategic Enforcement Plan for 2017-2021.

The proposed enforcement guidance examines three primary elements of a harassment claim. First, is the conduct based on a legally protected status? Second, is the conduct sufficiently severe or pervasive to create a hostile work environment? Third, is there a basis for employer liability? In examining these issues, the proposed guidance recommends that an effective harassment complaint system must:

• Be fully resourced, enabling the organization to respond promptly, thoroughly, and effectively to complaints;
• Be translated into all languages commonly used by employees;
• Provide multiple avenues of complaint;
• Provide prompt, thorough, and neutral investigations;
• Protect the privacy of alleged victims, individuals who report harassment, witnesses, alleged harassers, and other involved individuals to the greatest extent possible;
• Include processes to prevent retaliation against alleged victims, individuals who report harassment, and witnesses;
• Include processes to ensure that alleged harassers are not prematurely presumed guilty or prematurely disciplined for harassment; and
• Include processes to convey the resolution of the complaint to the complainant and the alleged harasser.

Of particular interest is the guidance’s emphasis on conduct outside of the workplace, including social media. The guide serves as a reminder of how broad actionable harassment claims can be. For example, harassment based on gender includes more than asking co-workers out on dates.  It includes sex stereotyping, conduct based on pregnancy or childbirth, and conduct based on gender identity.  Hostile work environments can be created by non-employees, such as contractors, customers, patients, nursing home residents, and employees of clients.

One of the proposals the EEOC recommends is for employers to train employees on civility in order to prevent workplace harassment, noting that such training shows “significant promise for preventing harassment in the workplace.”

The proposed guidance recommends that such training should be:

• championed by senior leaders
• repeated and reinforced regularly
• provided to employees at every level and location of the organization
• provided in all languages commonly used by employees
• tailored to the specific workplace and workforce
• conducted by qualified, live, interactive trainers or, if live training is not feasible, designed to include active engagement by participants
• routinely evaluated by participants and revised as necessary

This recommendation is arguably at odds with recent decisions by the National Labor Relations Board (NLRB) which, based on free speech concerns, postulate that those employer policies which dictate appropriate behavior in the workplace have the effect of chilling protected concerted activity by employees relating to the terms and conditions of their employment and are therefore prohibited. The NLRB has taken an aggressive approach in its scrutiny of employers’ handbook policies relating to civility and courtesy in the workplace. One example of the NLRB’s position in this regard is a 2015 ruling against a Cooper Tire and Rubber Company employee who, during a strike, shouted at black replacement workers, “Hey, did you bring enough KFC for everyone?” The comment incited other employees to shout racist remarks which were captured on company video surveillance. Cooper Tire terminated the employee who shouted the initial racist comment, citing his gross misconduct in violation of the company’s anti-harassment policy. The NLRB ruled that the employee was wrongfully discharged for engaging in concerted activities.

In contrast to the NLRB’s position, employers who do nothing in response to racial commentary risk liability under Title VII of the Civil Rights Act of 1964. So what is an employer to do? Perhaps a good start is to provide commentary to the EEOC in response to this proposed guidance requesting that the EEOC and the NLRB confer and attempt to harmonize their positions.

Notwithstanding the potential exposure to NLRB liability, the takeaway from this proposed guidance is for employers to ensure they have developed a clear and comprehensive harassment and retaliation policy which describes prohibited conduct and provides examples as well as step-by-step complaint procedures. Employers should also ensure they have effectively distributed and communicated this policy to their employees. Employers also need to ensure their leaders are accountable for maintaining a culture of respect in which harassment, based on protected characteristics, is not tolerated. Supervisory employees should receive training in critical principles such as ‘how to identify harassing conduct’ and ‘understanding the legal requirement for eliminating such conduct from the workplace.’ Employers should maintain vigilance in overseeing employee behavior, both inside and outside the workplace. Weighed in the balance, an employer that ensures a workplace free of discriminatory harassment reaps the benefits of a happy and engaged workforce.

The Equal Employment Opportunity Commission’s new proposed guidance is instructive for avoiding the legal pitfalls of workplace harassment by guiding employers to craft legally defensible employment policies and procedures and to provide harassment training to their management.