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On March 21, SHRM, joined by the College and University Professional Association for HR (CUPA-HR), submitted comments to the Equal Employment Opportunity Commission (EEOC) on its proposed enforcement guidance on workplace harassment. The EEOC periodically updates guidance that helps employers understand how the EEOC interprets the laws it enforces. Last year, the EEOC revised its enforcement guidance on retaliation and its guidance on national origin discrimination.
The revised guidance on workplace harassment enforcement follows from public meetings and the work of the Select Task Force on the Study of Harassment in the Workplace. The EEOC established the Select Task Force to focus on preventing workplace harassment. Two SHRM members (Jonathan Segal, Pennsylvania SHRM State Legislative Director, and Patricia Wise, a member of SHRM's Labor Relations Special Expertise Panel) served on the Select Task Force, which issued a report in July 2016. As the report notes, "During the course of fiscal year 2015, EEOC received approximately 28,000 charges alleging harassment from employees working for private employers or state and local government employers. This is almost a full third of the approximately 90,000 charges of employment discrimination that EEOC received that year," making harassment a persistent workplace issue.
The majority of the proposed enforcement guidance focuses on the current state of the law and the latest court interpretations. Like the Select Task Force report, however, the enforcement guidance also includes a section on promising practices that employers may want to consider to help prevent harassment, including workplace civility training and bystander intervention training.
SHRM's comments identify those areas in which the EEOC's guidance goes further than the established law and suggest that the guidance should clarify what the law requires rather than focusing on individual lower court decisions where the courts may have interpreted the law differently or more expansively than established law.
HR professionals and employers rely on agency enforcement guidance to explain the current state of the law and the EEOC's enforcement plans. For that reason, it is important that the guidance accurately reflect the state of the law. Likewise, while SHRM supports the EEOC's focus on promising practices, our comments suggest that the text affirmatively state that these are not legal requirements, a suggestion that was adopted for the HR checklists in the Select Task Force report.
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