We have always been concerned about the extent to which employees or the Equal Employment Opportunity Commission (EEOC) could claim they were suffering from harassment in the workplace. Recent guidance from the EEOC clarifies its position regarding the extent of the types of harassment that could occur and for which employers will be held responsible. In guidance issued by the EEOC on January 10, the EEOC states that employers are required to implement programs to combat any “known or obvious risks of harassment” and suggests a failure to do so could result in the loss of normal affirmative defenses to a claim of harassment such as proper action taken by the employer to address a harassment discrimination when brought to its attention.
What’s most disturbing about this new guidance is the broad interpretation of the types of harassment that would be considered covered under various federal laws. These include:
- National origin
EEOC went on to indicate that harassment claims could be based upon actions like:
- Sex stereotyping
- Sexual orientation
- Gender identity
- Genetic information
EEOC also indicated it would pursue claims based upon actions that do not directly show harassment such as:
- Perceived membership in a protected class (even if the perception is not accurate);
- Associational harassment where an employee is a member of a protected class and claims inappropriate action based upon their association with another who does not share their protected characteristics;
- Where the alleged action was not directed at the complainant;
- Instances where the alleged harassment occurred outside of the workplace.
While this is proposed guidance subject to additional comments and review, it signals the extensive nature of harassment complaints and potential liability for employers. EEOC suggests there must be a committed and engaged leadership within an organization to ensure harassment claims are avoided at all costs and regular training is provided by the organization to address the potential for harassment complaints. While some suggest the new administration will lessen the types of enforcement proceedings that will be taken against businesses, it is important to recognize the potential for harassment complaints against employees under a myriad of situations and make sure they are addressed appropriately through training and immediate effective action.