In the wake of the #MeTooMovement; televised adjudications of sexual abuse and misconduct trials; remote work environments; hybrid workplaces; and changes in sex and gender terminology, knowing when possible instances of workplace harassment and hostile work environments have occurred is becoming increasingly more difficult. The U.S. Equal Employment Opportunity Commission, (“EEOC”) has a fix for this.
As a continuation to the first “technical assistance document” released by the EEOC in 2017, the agency has since released an updated proposed guidance for understanding workplace harassment. This guideline has not yet been officially approved by the EEOC, but is posted on their website for public comment until November 1, 2023.
So, what is it?
The Proposed Enforcement Guidance on Harassment in the Workplace is a detailed manual of terminology, examples, and directions on how to identify, report, and enforce claims of harassment and hostile work environments.
Of course, we are all familiar with general definitions of sexual harassment and race and gender discrimination, but the guideline takes it a step further and discusses how these issues are inter-related with hostile work environments. The guide gives situational examples of sexual harassment and other types of discrimination, it explains how different types of conduct may contribute to a hostile work environment, and it discusses how instances outside of the workplace may affect and create a hostile work environment.
So, what does this mean for employers?
As of right now, there is no indication that employers will be required to post or distribute the guide to their employees. (WHEW!) However, employers may want to keep this guide handy as a reference if an employee happens to report an incident that may sound like harassment. The guide also includes a section on liability, explaining who may be liable for what and when. Similar to the other sections in the guide, the liability section gives examples of how employers may fail to take corrective action when harassment is reported and how that contributes to a hostile work environment. These sections and examples in particular may also be a good reference for employers to use when training employees.
Despite the guidance coming from the EEOC’s Office of Legal Counsel, this is not a document offering legal advice, and for you “legal eagles” out there – you won’t be able to cite to it because it won’t have any legal precedent. The sole purpose of its creation and distribution is for public edification and reference in light of the number of petitions filed in recent years which reference harassment and hostile work environment. Those seeking to file or defend claims with the EEOC should still seek legal counsel. If you’re having trouble deciding whether you are facing a lawsuit for claims of harassment or hostile work environment, contact the RKW Law Group for a consultation.
