New EEOC Proposed Guidance outlines fundamental elements of harassment in the workplace and provides clarification via hypothetical scenarios. It also incorporates recent changes in case law and topical social issues.
Guidance Updates for Anti-Harassment Policy Requirements
The Proposed Guidance clarifies, based on recent case law, that an effective anti-harassment policy should be “comprehensible to workers, including those who the employer has reason to believe might have barriers to comprehension” (e.g., limited English proficiency), and should include:
1. A definition of prohibited conduct;
2. A requirement that supervisors report harassment;
3. A statement that “[c]learly identifies accessible points of contact” for reporting purposes, including contact information; and
4. Explain the complaint process, including “adequate” anti-retaliation and confidentiality
Guidance for Effective Anti-Harassment Training
The Proposed Guidance includes a “non-exhaustive” list of elements of effective training that includes: an overview of the employer’s anti-harassment policy and complaint process; examples of prohibited conduct that, “if left unchecked,” could rise to the level of harassment; information on rights for those who witness, experience, or report harassment; and information for supervisors and managers on how to “prevent, identify, stop, report, and correct harassment.” Training should be “tailored” to the employer’s workplace and workforce, provided regularly to all employees in a “clear, easy-to-understand style and format.”
Clarification: Scope of Sex Discrimination or Harassment
The Proposed Guidance reminds employers that discrimination and harassment based on “sex” includes harassment based on pregnancy, childbirth, and “related medical conditions.” Taking this one step further, the EEOC states that “related medical conditions” include employees’ decisions related to contraception and abortion.
Guidance on Harassment in Remote Work Environment
The Proposed Guidance clarifies that conduct in a virtual work environment, including electronic communications using private phones, computers, or social media accounts, can contribute to a hostile work environment if they impact the workplace. As an example, the EEOC adds that an employee who is the subject of ethnic epithets posted on a coworker’s personal social media page could be subjected to a hostile work environment if the employee is directly exposed to the post or other coworkers see the post and discuss it at work.