SHRM: EEOC Harassment Guidance Is off the Mark in 8 Ways

By Allen Smith, J.D. Mar 27, 2017
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The Equal Employment Opportunity Commission's (EEOC's) proposed guidance on preventing harassment should be changed in multiple ways to bring it in line with federal law, according to the Society for Human Resource Management (SHRM) and the College and University Professional Association for Human Resources (CUPA-HR).

In a March 21 letter, the organizations made suggestions for changes to the guidance:

1. It should be clearer in the body of the guidance that the position of the commission is that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination but that this opinion is not established law. "I do not condone sexual orientation discrimination, and I believe that employers should prohibit it as a matter of policy," said Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C., in an interview with SHRM Online. But contrary to the EEOC, she said, "I do not think Title VII prohibits sexual orientation discrimination. Therefore, I don't think the EEOC should be processing charges based on sexual orientation discrimination." However, she added, "The final determination here will be up to the courts."

2. It should clarify that there is not strict liability for severe conduct. In a case in which a co-worker threatens physical violence against another and the employer has a robust anti-harassment policy and complaint procedure that the employee uses, then the co-worker making the threat would be fired and  the employer should not be liable in this scenario, SHRM and CUPA-HR wrote.

3. It should not suggest that an indication that conduct is unwelcome shows that the conduct is objectively offensive. Suppose a supervisor asks a subordinate whether she had a good weekend. The worker perceives the question to be an indirect way of asking about her sexual activity and states that she finds the question offensive. The next week the supervisor asks again. The employee's statement that the question is unwelcome does not turn the question into objectively offensive conduct, SHRM and CUPA-HR said. To determine whether unwelcome conduct is objectively offensive to a reasonable person, courts will examine, among other things, the frequency and severity of the conduct, noted Franklin Wolf, an attorney with Fisher Phillips in Chicago.

4. It should delete the EEOC's statement that if an individual is an alter ego for an employer, the employer is strictly liable for his or her conduct. The Supreme Court did not create an alter ego exception to its Faragher and Ellerth defense to liability when an employer can show it exercised reasonable care to prevent and correct harassment and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

[SHRM members-only HR Q&A: Are sexual harassment training providers required to possess certain qualifications to conduct a training program?]

5. It should explicitly state that a policy is widely disseminated if it is posted on an intranet, except when hard copy is needed as an Americans with Disabilities Act reasonable accommodation or when an employee works in a field or factory where he or she does not have easy access to the employer's intranet, SHRM and CUPA-HR wrote. "Employers should ask employees who may not have work e-mail whether they have a personal e-mail account to which they would like the policy sent," said Mark Kluger, an attorney with Kluger Healey in Florham Park, N.J.

6. It should eliminate the statement that an employee's failure to use the employer's complaint procedure may be reasonable if "the complainant is aware of instances in which the employer had failed to take appropriate corrective action in response to prior complaints filed by the complainant or co-workers." Kluger said, "Employees should never be given a free pass on using a clear, publicized policy and complaint procedure." He added that, "Just because [employees] may think that they know what has happened with other claims of harassment does not mean that they do. Investigations may have determined that the complained-about behavior did not occur or was not objectively offensive or inappropriate even if it was to the employee who complained. Or remedial measures may have been taken that were not publicized." However, Karen Vossler, an attorney with Ogletree Deakins in Washington, D.C., and Richmond, Va., said, "Employees always have the choice not to use an employer's complaint procedures. Sometimes, employees prefer to go directly to the EEOC, for example, rather than go through the employer's process. Sometimes, employees fear retaliation if they complain internally. In other circumstances, an employee might feel like it would be futile to complain because perhaps that employee knows the company does not treat such concerns seriously or based on a perception that the alleged harasser is friends with the decision-maker."

7. It should strike the guidance's statement that there is a legal requirement to take corrective action even if the conduct does not rise to the level of actionable harassment. "We agree that an employer who receives notice that some probability of harassment may exist must respond to the information it has," SHRM and CUPA-HR wrote. But, they added, "It is an erroneous stretch to say that, even if the conduct is not actionable, there is a legal requirement to take corrective action in response to it."

8. It should clarify that the promising practices in the guidance are not legal requirements. For example, Paul Patten, an attorney with Jackson Lewis in Chicago, expressed concern about the EEOC's advocacy for respectful workplace training. "Some of our clients would readily agree but others might object that requirements for respectful workplace training go beyond what is required by Title VII," he said.

However, Vossler said, "There is some creative research going on out there regarding different types of training to focus on interpersonal skill-building and bystander intervention that is really interesting and may breathe new life and new impact into the tried-and-true PowerPoint presentation."

 

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