'There's a couple of issues that employers may want to address,' says lawyer
“This has been a long time coming.”
So says Jonathan Segal, partner at Duane Morris, in discussing proposed “Enforcement Guidance on Harassment in the Workplace” from the government.
“But there's a couple of issues that employers may want to address.”
The U.S. Equal Employment Opportunity Commission (EEOC) released the proposal for public input on Sept. 29. The new guidance reflects changes to employment laws, addressing emerging issues such as protection for trans workers and online harassment.
Between 2018 and 2022, 35% of employment discrimination cases brought to the EEOC included harassment based on characteristics protected under Title 7 of the Civil Rights Act of 1964, the proposal states. The current version of the guidelines was published in 1999, and have not been updated, although in 2017 the Obama administration proposed updates on workplace harassment.
Those updates were dropped under the Trump administration.
Proposed harassment guidelines a tool for HR policy
Segal was on the task force that worked on the 2017 EEOC guidelines under Obama administration – the proposed rules offer employees much-needed guidance around their current policies and practices, he said.
“This is an opportunity for employers to take a look at what they're doing to prevent and respond to harassing conduct at a systemic level, the same way the EEOC is doing it,” said Segal.
“The EEOC guidance is a wonderful tool for employers, not only to minimize legal risks, but also to help create a safer and more effective culture.”
EEOC guidelines point to all types of protected classes
A major difference with this new set of proposed rules, he said, is a widening focus away from sex-based harassment to more equally include groups that are protected by other federal laws, like the Age Discrimination Act of 1967 (ADEA) and the Americans with Disabilities Act (ADA).
“The EEOC emphasizes and includes examples to support the fact that the federal laws cover not only sexual but other kinds of harassment,” Segal said. “Some employers, in my experience, have robust sexual harassment prevention policies and training, and then talk about other kinds of harassment – racial, religious, ethnic, disability, etc. –as an afterthought or as an add-on. And that's inconsistent with the law.”
Segal stresses that employers should ensure that all HR policies against workplace harassment address all forms of it, not just sex-based. And if they don’t, enhance the policies where necessary.
Gender identity and expression emphasized in new EEOC guidelines
The inclusion of harassment based on gender identity is an area that HR should pay attention to, Segal said, as there are some gray areas.
The guidelines state that, “sex-based harassment includes harassment on the basis of sexual orientation and gender identity, including how that identity is expressed.” It goes on to detail that misgendering (continuing to deliberately use the incorrect pronoun for an individual), harassment for not presenting according to traditional gender stereotypes, and not allowing the use of a bathroom or “other sex-segregated facility” that aligns with a person’s gender identity, to be recognized forms of harassment.
Segal points out that the proposed guideline does not specify what constitutes an “other sex-segregated facility,” which is another spot employers should address.
Also, the guidelines do not address liability in the case of an individual not wanting to adhere to using pronouns because of religious reasons, he said.
“The question is, can an employee who has religious objections to using pronouns that do not conform with someone's biology at birth avoid pronouns altogether, and just use the person's name, without that being harassing conduct? … The person with a religious objection might say that's a reasonable accommodation. I could see a court going either way.”
Not all nations play by same rules
Segal pointed out that employers in the States need to be mindful that while the EEOC and federal statutes protect against discriminatory harassment based on certain defined classes such as race and gender, that is not the case for all countries, where the laws can be more broad.
For example, he said, France has laws against “moral harassment”, and Canada against “psychological harassment.”
“Employers who have employees who operate globally need to be educated on what they can and cannot do,” said Segal. “Some of that is nothing less than treating people with respect, nothing more than respect and civility. But if you ignore it, it creates not only business, but also legal problems abroad.”
The proposed guidelines are posted online at the EEOC website, and public comments can be submitted at Federal Register :: Proposed Enforcement Guidance on Harassment in the Workplace until November 1, 2023.