On January 10, 2017, the U.S. Equal Employment Opportunity Commission requested public input on proposed enforcement guidance for addressing unlawful harassment in the workplace and hostile work environments under Title VII of the Civil Rights Act of 1964. Harassment claims have risen over the past few years and the proposed guidance follows a June 2016 EEOC report. While there are a number of classes protected under federal and state law, harassment claims based on sex, race, and/or disability appear to be most common. Employers should be aware of the legal standards and potential liability for unlawful harassment in order to help mitigate damages in advance.
As the Supreme Court explained in Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993):
Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment – an environment that a reasonable person would find hostile or abusive – is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.
The “severe or pervasive” standard seeks to find a middle ground between conduct that is juvenile or annoying and conduct that goes so far as to create a hostile work environment. Whether a person has been harassed depends on the “totality of the circumstances,” and a finding of harassment will turn on the specific facts of each case. Certain conduct is more blatant than other conduct, such as racial slurs or offensive comments about disabled persons. Other conduct may be more benign such as off-color jokes or distasteful insinuations but may nevertheless be a form of harassment when taken into the overall context.
Harassment must be based on a protected characteristic and can even be based on the perception that a person has a particular characteristic or belongs to a protected group, even if that perception is ultimately incorrect. Similarly, “associational discrimination” covers harassment against a person because of his or her association with individuals, such as a spouse, child, or close friend. Even if the alleged harasser belongs to the same protected class, harassment based on a protected characteristic may be found.
The liability standard on the employer depends on whether the harasser is the employer’s “alter ego” or “proxy,” a supervisor, or a non-supervisory employee, coworker, or non-employee. The burden of proof on an employee to simply file a discrimination or harassment complaint is virtually non-existent and federal and state agencies seem to accept blanket and conclusory allegations when accepting a charge. This turns the burden, along with the expense of properly defending a complaint, however frivolous, on the employer. For this reason, paper trails are important, and employee complaints along with disciplinary action and remedial measures should be properly documented and preserved to defend against all types of complaints.
The full text of the guidance is available at https://www.regulations.gov/document?D=EEOC-2016-0009-0001. The EEOC is accepting comments through Feb. 9, 2017: https://www.regulations.gov/docket?D=EEOC-2016-0009. If you have questions about how to protect your company and your employees from harassment in the workplace, please contact us.