Unlawful harassment is alive and well in the workplace. According to a report issued last year by a Select Task Force of the Equal Employment Opportunity Commission (“EEOC”) on the Study of Harassment in the Workplace (the “Task Force Report”), almost one third of all charges received by the EEOC in 2015 included an allegation of workplace harassment, and the EEOC believes that many cases of workplace harassment go unreported.

Workplace harassment is not only unlawful, but it is also expensive. The direct costs incurred for investigations, litigation and damages may be dwarfed by the indirect costs tied to harassment complaints, which can include decreased productivity, increased turnover, and reputational damage. Employers must therefore understand what harassment is and what their obligations are when they are faced with a harassment complaint.

What is Unlawful Harassment?

Harassment is a form of employment discrimination that violates one or more of the federal laws that the EEOC enforces—that is, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and/or the Americans with Disabilities Act of 1990. More specifically, harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy and, according to the EEOC, gender identity and sexual orientation), national origin, disability, age or genetic information. While petty slights, annoyances, and isolated incidents ordinarily do not constitute unlawful harassment (unless they are extremely serious), conduct based on one or more protected classifications becomes unlawful when enduring the conduct becomes a condition of continued employment, or when the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

State law may cover additional protected classes. In Connecticut, for example, it is also unlawful to discriminate on the basis of marital status and ancestry.  Moreover, Connecticut law explicitly bars discrimination on the basis of sexual orientation and gender identity or expression, so even if the EEOC’s position that Title VII prohibits such discrimination is rejected by the courts, such discrimination will remain illegal in Connecticut.

When is an Employer Liable for Harassment?

The EEOC recently released for public comment a proposed enforcement guidance on unlawful harassment (the “Proposed Guidance”) as a companion to the Task Force Report. The Proposed Guidance summarizes, with examples, the applicable standards of employer liability for workplace harassment based on the level and kind of authority the employer gives the harasser to act on its behalf.

In general:

• If the harasser is the employer’s “alter ego” (that is, an individual of sufficiently high rank that his or her actions speak for the employer, such as a sole proprietor or corporate officer), the employer is automatically liable for the harassment and has no defense.

• If the harasser is a supervisor:

• And the harassment results in a negative employment action such as termination, demotion or failure to promote, the employer is automatically liable and has no defense.

• And the harassment does not result in a negative employment action, the employer can avoid liability only if it can prove that: (1) it acted reasonably to prevent and promptly correct the harassment; and (2) the complaining employee unreasonably failed to use the employer’s complaint procedure or to take other steps to avoid or minimize harm from the harassment.

• If the harasser is a non-supervisory employee or a non-employee over whom the employer has control (such as an independent contractor or customer), the employer will be liable if it failed to act reasonably to prevent the harassment or if it failed to take reasonable corrective action in response to harassment about which it knew or should have known.

Proactive Steps to Prevent and Correct Harassment

The Task Force Report identifies five core principles that it has found to be generally effective in addressing harassment:

• 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.

The Proposed Guidance discusses each of these principles and offers what it terms “promising practices” that employers can adopt to prevent and respond to workplace harassment.

Comment Period on the Proposed Guidance

The EEOC recently extended the public comment period on the Proposed Guidance until March 21, 2017. You can view comments already submitted or submit your own comments at regulations.gov. After reviewing the public input, the EEOC will consider appropriate revisions to the Proposed Guidance before finalizing it.