By Deryn Sumner, January 18, 2017

Following up on the report issued in 2016 by the EEOC’s Select Task Force on the Study of Harassment in the Workplace, on January 10, 2017, the EEOC announced that it was seeking feedback on a proposed Enforcement Guidance on Unlawful Harassment.  The Commission last issued guidance on harassment claims in June 1999, with its issuance on Vicarious Employer Liability for Unlawful Harassment by Supervisors.  Although the Supreme Court’s decision in Vance v. Ball State, 133 S.Ct. 2434 (2013) narrowed the definition of who is a supervisor for purposes of establishing liability, the Commission’s 1999 Guidance was only updated with a small text box at the top noting what the Supreme Court held in its decision.  This is the same tactic the Commission has taken with its guidance on disability discrimination, which was issued years prior to the passage of the ADA Amendments Act of 2008.

The EEOC seeks public comment on the proposed enforcement guidance, which is intended to replace all the current enforcement guidance on harassment issued by the Commission.  The proposed guidance refers to the EEOC’s Select Task Force in the introduction section and sets out the applicable and most recent case law regarding harassment in the workplace.  The proposed guidance clearly states the EEOC’s position that claims of gender identity discrimination, including discrimination based on transgender status, as well as claims of sexual orientation discrimination state claims of sex discrimination.

The proposed guidance sets forth examples of how claims of actionable harassment must be linked to an employee’s membership in a protected class.  For example, derogatory comments about an employee’s national origin could help make an actionable claim of harassment. A workplace altercation because an employee’s girlfriend broke up with him to date someone else in the workplace is not.  As the proposed guidance states, “Although an employee’s protected status need not be the only basis for the harassment, the EEO statutes do not prohibit harassment unless it is based, at least in part, on a protected characteristic.”

The proposed guidance also includes a section on liability standards, guidance that is needed after the Supreme Court’s decision in Vance. It also includes four sub-sections under the heading of “Promising Practices,” to discuss how to avoid complaints of harassment in the first place.  These include “Leadership and Accountability,” “Comprehensive and Effective Harassment Policy,” “Effective and Accessible Harassment Complaint System,” and “Effective Harassment Training.”  These compliment the recommendations of the EEOC’s Select Task Force in the report issued last year, and it is heartening to see the Commission continue to work to update its Guidance.

If you’d like to submit your own comments, you have until February 9, 2017 to do so here: [email protected]

[Editor’s note: if this topic interests you, join FELTG for a very timely webinar on hostile work environment harassment on Thursday, February 2.]

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