Monday, January 30, 2017

EEOC Seeks Public Comment on Proposed Harassment Guidance

Earlier this month, the Equal Employment Opportunity Commission (EEOC) issued a proposed guidance document on workplace harassment. The EEOC is seeking public comment on the guidance through February 9, 2017.

Preventing systemic harassment is listed as a priority in the EEOC’s Strategic Enforcement Plan for 2017-2021. In 2015, harassment charges represented over 30 percent of all charges filed with the EEOC. The same year, the EEOC created a task force to analyze workplace harassment and identify innovative and creative prevention strategies. The task force issued its findings and recommendations in 2016, leading to the recently proposed guidance.

The guidance is intended to assist the EEOC in investigating harassment charges, but also to assist employers and employees in understanding ways in which harassment can be prevented and addressed. Included in the guidance is discussion of the EEOC’s position on topics including “promising practices” for preventing and addressing harassment in the workplace. In this regard, the guidance recommends that an effective harassment complaint system must:
  • be fully resourced, enabling the organization to respond promptly, thoroughly, and effectively to complaints;
  • be translated into all languages commonly used by employees;
  • provide multiple avenues of complaint;
  • provide prompt, thorough, and neutral investigations;
  • protect the privacy of alleged victims, individuals who report harassment, witnesses, alleged harassers, and other involved individuals to the greatest extent possible;
  • include processes to prevent retaliation against alleged victims, individuals who report harassment, and witnesses;
  • include processes to ensure that alleged harassers are not prematurely presumed guilty or prematurely disciplined for harassment; and
  • include processes to convey the resolution of the complaint to the complainant and the alleged harasser.

Interestingly, the proposed guidance also recommends “civility training” for employees as another way to prevent and address harassment in the workplace. This puts the guidance squarely at odds with recent National Labor Relations Board (NLRB) decisions on protected workplace activities under the National Labor Relations Act. The NLRB has ruled that prohibiting disrespectful or uncivil behavior by employees chills their rights, under Section 7 of the federal labor law, to act together to improve their working terms and conditions. The EEOC’s proposed guidance recommends, however, that civility training should be:
  • championed by senior leaders;
  • repeated and reinforced regularly;
  • provided to employees at every level and location of the organization;
  • provided in all languages commonly used by employees;
  • tailored to the specific workplace and workforce;
  • conducted by qualified, live, interactive trainers or, if live training is not feasible, designed to include active engagement by participants; and
  • routinely evaluated by participants and revised as necessary.

Ideally, the EEOC’s final guidance will address the dichotomy between its position and that of the NLRB. Notwithstanding that issue, and until final guidance is released, the main take-away from the proposed guidance is for employers to ensure they have developed a clear and comprehensive harassment and retaliation policy which describes prohibited conduct and complaint, investigation, and resolution processes.

Comments to the proposed guidance may be submitted through, or by mail to: Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.

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