New guidance on harassment is coming: What’s the EEOC saying now?

New proposed enforcement guidance from the EEOC is a helpful tool for employers in dealing with the ever-present challenge of preventing workplace harassment.

The proposed guidance analyzes the legal standards that apply to harassment claims in light of relatively recent developments, including the #MeToo movement and a landmark Supreme Court decision that said Title VII bans discrimination based on homosexuality or transgender status. Once finalized, it will supersede five earlier EEOC guidance documents.

3 key harassment questions

The guidance essentially takes a look at three critical questions when it comes to workplace harassment:

• Was the challenged conduct based on a legally protected characteristic? To be actionable under federal law, challenged conduct must be based on a protected characteristic such as age, race or disability. If you’re a lefty and an employer doesn’t hire you just because it doesn’t like left-handers, federal anti-discrimination law does not help you.
• Did the challenged conduct produce discrimination with respect to a term, condition or privilege of employment? This happens when there is an explicit change to the terms or conditions of employment or the challenged conduct creates a hostile work environment.
• Is there a basis for holding the employer liable? Different liability standards apply depending most importantly on the role of the harasser and whether there was an explicit change to a term, condition or privilege of employment.

 First things first: Protected characteristics

The “covered bases” under federal anti-discrimination laws are as follows:

• Race
• Color
• National origin
• Religion
• Sex
• Age
• Disability
• Genetic information

Within many of these protected categories are important wrinkles and nuances.

For example, race harassment may include harassment based on traits linked to race, such as name or accent. Sex-based harassment includes harassment based on pregnancy or childbirth as well as harassment based on sexual orientation or gender identity. And disability-based harassment includes harassment based on the disability of a person with whom the harassment victim is associated. That means a person without a disability can sue under the ADA. This ban on “associational discrimination” also exists under other federal anti-discrimination laws.

Applicants or employees who allege unlawful discrimination must show that the challenged conduct was motivated by prohibited discrimination. Mistreatment based on conduct that is not motivated by a protected characteristic is not actionable. The proposed guidance gives the example of a worker who harassed a co-worker after the co-worker began dating the worker’s ex-girlfriend. This conduct does not give rise to an actionable claim of harassment.

Next up: Terms, conditions or privileges of employment

There is no employer liability under the statutes the EEOC enforces unless the challenged conduct negatively affects a term, condition or privilege of employment.

Just what does this mean?

Here’s an obvious example, taken from the proposed guidance: A supervisor denied an employee a promotion for rejecting the supervisor’s sexual advances. It’s clear that the harassing behavior has negatively affected a term, condition or privilege of employment.

When there is not an explicit change to terms or conditions, harassment can still be illegal if it creates a hostile work environment.

How bad is bad enough to break the law?

The harassment must be severe or pervasive enough to alter the conditions of employment and create an abusive work environment.

If it is severe enough, even a single incident can be sufficient to create a hostile job environment. However, most cases involve a series of acts. The offensive conduct must be both objectively and subjectively hostile.

It is important to remember that conduct not specifically directed at an individual can nonetheless constitute illegal harassment. For example, and as the proposed guidance explains, “the use of gender-based epithets may contribute to a hostile environment for women even if the epithets are not directed at them.”

Also remember that some off-site harassment, such as harassment that occurs at a work-sponsored holiday party, may lead to liability for employers.

Last but not least: Liability

If there was a harassment-motivated and an explicit change to a term, condition or privilege of employment – and the harassment was based on a protected characteristic – the employer is liable.

The guidance goes into specific detail about the standards that apply depending on whether the harasser is a proxy or alter ego of the employer; a supervisor; or a person other than a proxy, alter ego or supervisor. Essentially, the standard for liability changes depending on the role of the harasser.

Technically, EEOC enforcement guidance documents do not carry the force of law. Instead, they communicate the agency’s position. But practically, they carry more real-world weight because employers who act in contravention of that position face the threat of agency enforcement efforts – or a lawsuit emboldened by the agency’s take on the law. In other words, following the guidance reduces an employer’s odds of getting sued.

The agency is accepting public comments on the proposed new guidance until Nov. 1.