With nearly fifty years of caselaw addressing the introduction, definition, and expansion of workplace harassment law, the Equal Employment Opportunity Commission (EEOC) replaced its prior enforcement guidance published in the 1980s and 1990s with a new document entitled “Enforcement Guidance on Harassment in the Workplace.” The document includes many practical examples of types of harassment and explanations of employer liability and causation. It also provides some helpful insight that employers can use to review and update their harassment policies and trainings. While some aspects of the guidance pertaining to gender identity are currently facing legal challenge, the guidance remains in effect and the tips below are grounded in established case law, providing a solid roadmap for employers to follow.
When Less Is Not More — Is Your Policy Broad Enough?
Even before the EEOC’s April 29, 2024, release of its new enforcement guidance, one of the most common errors in employer anti-harassment policies was having too narrow of a scope for prohibited behavior. What do we mean by scope? In a typical employee handbook, employers often include an Equal Employment Opportunity policy that covers federal, state, and local protected classes; however, often the Harassment policy focuses only on sexual harassment. While it is true that the bulk of litigation and coverage of harassment cases involve sexual harassment, that does not mean there cannot be harassment based on other protected classes such as race, color, national origin, age, disability, religion, or other protected classes, for example. If behavior is not covered by your policy, how will your employees know their rights and responsibilities?
It is important that your policies inform employees of all prohibited behavior and also the internal complaint procedures to address such behavior in the workplace. First, internal complaints are the best way for you to learn about and correct prohibited behavior, rather than first hearing of the concerns through an administrative agency, an attorney demand letter, or a lawsuit. But more importantly, courts hearing claims of workplace harassment will look to see if the employer exercised reasonable care both to prevent and to correct workplace harassment. In fact, this standard has long been part of the caselaw with respect to determining employer liability and also the availability of affirmative defenses. Employer policies and accompanying education programs can be used to meet these obligations along with a responsive complaint resolution process.
Tips for Implementing Policies, Procedures, and Education Programs
While there is no magic language to guarantee your policy, complaint procedures, and trainings will pass legal muster, the focus will be on what is reasonable. Therefore, try to put yourself in your various employees’ shoes: How will they know what behavior is prohibited? How will they know when and where to turn for help?
In its recent guidance, the EEOC lists some general expectations of an effective policy:
- Define what conduct is prohibited. Be sure that your policy covers all forms of protected classes — including local laws and ordinances that are often broader than state and federal law — so that you can identify all potential claims of harassment.
- Disseminate your policy to all employees, track its delivery/receipt.
- Make sure the policy is understandable to all your workers, including those who may face literacy or language challenges. Be careful of form policies from the web or associations that may not fit your workforce.
- Require that supervisors report harassment when they become aware of it.
- Offer a bypass or multiple avenues for reporting harassment so the employee is not required to contact their harasser to report the concern.
- Clearly identify points of contact where reports of harassment should be made and include contact information.
- Explain the complaint process, including anti-retaliation and confidentiality protections.
The guidance similarly offers suggestions for an effective complaint resolution process:
- Make sure the process provides for prompt and effective investigations and corrective action reasonably aimed at stopping the behavior.
- Offer confidentiality protections to the extent you can.
- Provide and enforce adequate anti-retaliation protections.
Employers should be careful with promises of confidentiality. While it is certainly helpful to create an environment in which employees feel comfortable coming forward, confidentiality provisions are not meant to unnecessarily restrict the employer’s ability to investigate and take corrective action to stop prohibited behavior. A good policy explains the extent and limitation to which the employer can protect confidentiality for employees coming forward before they disclose information that requires some form of a response.
Finally, training and awareness programs need to both (i) explain employee’s rights to be free from harassment and how to seek assistance and (ii) instruct employees of their responsibilities, especially with respect to supervisors who will often play a role in the complaint resolution process if they learn of prohibited behavior. The EEOC offers the following tips for an effective education program:
- Explain the anti-harassment policy and complaint process, including any alternative dispute resolution process, and confidentiality and anti-retaliation protections.
- Describe and provide examples of prohibited conduct under the policy.
- Provide information about employees’ rights if they experience, observe, become aware of, or report conduct they believe may be prohibited.
- Provide supervisors and managers with information about how to prevent, identify, stop, report, and correct harassment with clear instructions for addressing and reporting harassment that they observe, that is reported to them, or that they otherwise become aware of.
- Tailor the program to the workplace and workforce in a clear and easy to understand style and format.
- Provide training on a regular basis to all employees.
Common Mistakes
Despite planning and best intentions, harassment cases can be difficult to administer. One common omission from harassment policies includes behavior that comes from clients, vendors, or other third parties with whom the employee must encounter as part of their job responsibilities so that employees know it is prohibited and can be reported.
A common misunderstanding the EEOC highlights is that “intraclass harassment” is also covered; that is, behavior can still constitute harassment even if the harasser and the targeted employee share the same protected class — the only question is whether the behavior was directed at the employee because of their protected class.
Next, we often see policies suggesting the employee confront the harasser first to see if the problem can be resolved. While this option is permissible, it is important that the tone of the policy, as well as the culture of the organization, support the notion that this option must be voluntary and not otherwise thwart an employee’s use of your complaint resolution process to address concerns.
Finally, if your company has an ethics hotline or similar reporting mechanism, be sure someone is trained in how to respond to complaints of harassment that may come through that system, including anonymous complaints.
Takeaways
It is worth noting that there are many novel legal applications in the EEOC document and, not surprisingly, there are currently several legal challenges to certain aspects of the new guidance making their way through the courts specific to gender identity and sexual orientation, for example. In addition, recent activity by the U.S. Supreme Court has altered the legal application of guidance such as this. However, the steps and actions identified above are sound areas to review that will not be affected by the isolated challenges. Your Fredrikson attorneys can assist you with your policies and trainings as well as complaint investigation and resolution.
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