EEOC's New Anti-Harassment Guidance

By Murphy J. Foster, III

On April 29, 2024, the Equal Employment Opportunity Commission issued its "Enforcement Guidance on Harassment in the Workplace." In this document, the EEOC provides specific direction on what it would consider to be best practices for employers in preventing and addressing workplace harassment including policies, training, and investigations. While the guidance does not have the force of law, it provides insight on how the EEOC will interpret and seek to enforce the federal anti-harassment laws, including Title VII; the Age Discrimination in Employment Act; the Americans with Disabilities Act; and Genetic Information Non-Discrimination Act. It will be up to the various courts to decide how much credence to give to the guidance. It may embrace it fully, or it may reject it altogether.

The guidance focuses on three components of a harassment claim: 1. covered bases and causation; 2. discrimination with respect to a term, condition, or privilege of employment; and 3. liability. It also discusses the specific topic of systemic harassment, a particular area of interest for the EEOC and provides links to other harassment related resources.

The guidance reviews each of the protected characteristics, providing examples of types of harassment based on each. Of particular interest, the guidance makes the following points beyond the generally understood principles of harassment:

racial harassment - includes harassment based on traits or characteristics linked to race such as name, cultural dress, accent or manner of speech, and physical characteristics including appearance standards like hair texture and hairstyles commonly associated with specific racial groups;
national origin harassment - includes conduct based on stereotypes as well as targeting physical characteristics, ethnic or cultural characteristics like attire or diet, or linguistic characteristics like accent or lack of fluency;
religious harassment - encompasses coercing employees to engage in religious practices at work;
sexual harassment - includes pregnancy, childbirth related conditions (including lactation, the use or non-use of contraception, and abortion) as well as sexual orientation or gender identity;
disability harassment - includes harassment based on trait or characteristics linked to disability such as how an individual speaks, looks, or moves.

Suffice it to say that the EEOC has ramped up its concept of what discrimination is and how it should be addressed.

What Do You Mean, We Don't Have to Train?

By: Jerry "Jay" Stovall, Jr.

Most of us believe, and justifiably so, that we “have” to train our employees regarding harassment, discrimination, and retaliation. Title VII must contain language requiring some sort of training on these issues, right?

Not exactly. If you read the text of Title VII and the accompanying regulations you will not find any language requiring employee training on these issues.

This does not mean that we are all mistaken or that such training will not serve as a meaningful defense to a claim under Title VII. As the EEOC noted in its recently issued Enforcement Guidance on Harassment in the Workplace discussing the application of the Faragher-Ellerth defense: (i. employer exercised reasonable care to prevent/correct harassment, and ii employee unreasonably failed to take advantage of preventative/corrective measures provided by employer.) “federal EEO law does not specify particular steps an employer must take to establish that it exercised reasonable care to prevent and correct harassment.” However, these steps “usually consist of promulgating a policy against harassment, establishing a process for addressing harassment complaints, providing training to ensure employees understand their rights and responsibilities, and monitoring the workplace to ensure adherence to the employer’s policy.”

The EEOC Guidance even provides details on what such training should look like:

it explains the employer’s anti-harassment policy and complaint process, including any alternative dispute resolution process, and confidentiality and anti-retaliation protections;
it describes and provides examples of prohibited conduct under the policy;
it provides information about employees’ rights if they experience, observe, become aware of, or report conduct that they believe may be prohibited;
it provides supervisors and managers with information about how to prevent, identify, stop, report, and correct harassment, such as actions that can be taken to minimize the risk of harassment, and with clear instructions for addressing and reporting harassment that they observe, that is reported to them, or that they otherwise become aware of;
it is tailored to the workplace and workforce;
it is provided on a regular basis to all employees; and
it is provided in a clear, easy-to-understand style and format.”

By now we are all aware of the U.S. Supreme Court decision overturning Chevron and the fact that courts are going to show the regulations of agencies such as the EEOC far less deference. Despite this, courts are still very likely to require proof of adequate training of employees in order to uphold application of the Faragher-Ellerth defense in the context of a Title VII claim.

The EEOC has provided us a roadmap for Title VII training, we would be wise to use it. Don’t forget to document your training efforts. If you don’t document it, you didn’t do it.