Work it Out Blog

Unlawful Workplace Harassment Expands?

May 26, 2017 by Jill C. McQueen

Earlier this year, the United States Equal Employment Opportunity Commission issued a new “Enforcement Guidance” on harassment in the workplace. The document clarifies the EEOC’s interpretation of the way that Title VII and other federal laws apply. In the new Guidance, the EEOC announces its position that harassment “based on sex” includes behaviors motivated by sexual stereotyping, sexual orientation, gender identity, pregnancy, and pregnancy-related medical conditions. 

The Guidance also makes clear that, in addition to more traditional harassment claims, it will now pursue harassment claims that are based on perceived membership in a protected class, even if the perception is not correct, and in cases in which alleged harassment occurs outside of the workplace—whether in person or online. 

The Enforcement Guidance seeks to add to the employer’s existing affirmative obligations to prevent and address harassment, specifying the elements that must be included in an effective anti-harassment policy. In addition, the EEOC maintains that employers must take corrective action in response to conduct or complaints, even if the conduct complained of does not constitute unlawful harassment. This is essential, the EEOC asserts, in order to prevent escalation.  The guidance indicates that employers who fail to implement programs to address “obvious risks of harassment” stand to lose key affirmative defenses otherwise available in cases of this kind. 

An employer’s liability for harassment depends, in part, on the position held by the harasser. If the offender is a “proxy” or “alter ego” of the employer itself—business owners, corporate officers, highly placed managers, for example—the employer is strictly liable for his or her actions. That is, the employer is responsible for the conduct, even if it was unaware of it, as if the employer had committed the acts itself.

While Enforcement Guidance from the EEOC does not have the force of law, it is a clear signal of the position the Commission will take when faced with a charge alleging harassment, and reflect the EEOC’s enforcement priorities. In light of these indicators, employers are encouraged to review and update handbook policies, communicate those updates, and to fortify their preventive efforts against harassment.

For more information, contact Jill McQueen or any of the Day Ketterer employment attorneys.  To reach Jill directly,  jcmcqueen@dayketterer.com or 330.458-2161.

Did you know?  Day Ketterer’s attorneys are available to provide on-site anti-harassment training to your supervisors and managers.

The content of this blog is for informational purposes only and is not intended as legal advice for any purpose. This blog is not intended to present an exhaustive summary of all applicable laws, or to take the place of legal advice.  If you have any questions regarding the law, please contact us for assistance.