The Equal Employment Opportunity Commission (EEOC) published its Enforcement Guidance on Harassment in the Workplace (the Guidance) recently. The Guidance, which became effective immediately, is meant to address the ever-evolving workforce. The EEOC has offered three components to determine whether conduct amounts to harassment under federal equal employment opportunity statutes that are enforced by the EEOC.
Covered Bases and Causation
One of the three components of a harassment claim refers to the covered bases and causation. This first component asks whether the harassing conduct was based on the individual’s legally protected characteristic? The EEO statutes may protect an individual based on characteristics that are protected by law; these include race, color, national origin, religion, sex (which includes pregnancy, childbirth, sexual orientation, and gender identity), age, and disability. To conform with the Supreme Court’s 2020 holding in Bostock v. Clayton County, Georgia, which held that sex discrimination includes discrimination on the basis of sexual orientation and gender identity, the Guidance has expanded the meaning of what constitutes sex harassment.
This question also advises employers to ask whether the egregious conduct was prompted because of the complainant’s protected characteristics. The characteristic does not have to be explicitly referenced in the harassing conduct; stereotypes about race, sex, or other characteristics may be enough to show evidence of a hostile work environment, even if the stereotype is positive or neutral. If the harassing conduct was not made because of the protected characteristic, federal EEO statutes will not apply.
Discrimination with Respect to Terms, Conditions, or Privileges of Employment
The second component the EEOC offers to evaluate whether harassment violated EEO laws is if the harassment resulted in or constituted discrimination with respect to a term, condition, or privilege of employment. An explicit change to the terms or conditions of employment would be denying an employee a promotion or other job benefit on the basis of sex, race, age, or some other protected characteristic.
Absent an explicit change in the terms or conditions of employment, the conduct must change the terms or conditions so as to create a hostile work environment. To determine whether a hostile work environment exists, the Guidance suggests looking objectively and subjectively at the circumstances. In most cases, the complainant’s allegation alone is enough to prove subjectivity; the claimant telling a coworker, friend, or family member may also be enough to find the conduct subjectively created a hostile work environment.
Proving the work environment is objectively hostile may be more difficult. The Guidance offers several factors that may aid an employer in their evaluation: the frequency of the conduct, the severity of the conduct, the degree in which the conduct was physically threatening or humiliating, and the degree in which the conduct interfered with the employee’s work performance. The Guidance recommends evaluating the surrounding circumstances and asking whether a reasonable person would view the work environment as hostile.
Liability
The final component asks whether there is a basis to hold the employer liable for the harassing conduct. The Guidance offers various standards to apply to determine whether an employer will be held liable for the conduct of the accused employee. These standards depend upon the relationship between the accused employee and the employer.
One standard asks if the accused is a proxy or an alter ego of the employer. Is the accused of such a high rank within the job that their actions and statements are thought to be that of the employer? If the accused is the proxy or alter ego, then the employer is automatically liable for creating a hostile work environment due to the conduct of the accused.
If the accused is a supervisor who has no control over tangible employment actions, meaning they cannot control official acts such as hiring, firing, demotions, promotions, etc., the employer may still be found vicariously liable for the accused’s conduct if the complainant reasonably believed the accused had tangible employment powers or influence over official acts. When an employer is found vicariously liable, this means the actions of the accused are imputed to the employer. For anyone other than a supervisor or proxy to the employer, the employer may still be held liable if they were negligent in failing to reasonably prevent the harm, or failing to take reasonable corrective actions to respond to the harm once they were made aware of it.
Corrective Actions
There are multiple corrective actions the EEOC recommends to stop harassment and prevent it from happening again. The appropriateness of the corrective actions will depend upon the facts and circumstances of the situation. Federal EEO laws do not explicitly state what steps an employer must take to show that the employer took reasonable care to prevent and correct harassment. Instead, a corrective action may be taken by conducting a prompt and adequate investigation of the allegations and monitoring the situation after the harassment has stopped, training managers and supervisors on how to identify and adequately respond to prohibited conduct, or disseminating a comprehensible anti-harassment policy to all employees.
Takeaway
Promulgating strong and effective policies to protect employees against harassment, sufficiently addressing complaints, and providing employees with adequate training to understand both their rights and responsibilities are crucial measures that employees may want to consider taking. The Guidance advises such preventative measures to be implemented and that they be tailored to the workforce. In light of the new EEOC Guidance, employers can contact our attorneys to explore if their existing policies, procedures, and employee training to best comply with the Guidance.