Seyfarth Synopsis: On October 2, 2023, the Equal Employment Alternative Fee (“EEOC”) printed discover of its “PROPOSED Enforcement Steerage on Harassment within the Office” (“draft enforcement steerage”) within the Federal Register. Employers ought to listen as a result of the draft enforcement steerage units forth the requirements to which the EEOC will search to carry employers liable, and the EEOC is anticipated to finalize and undertake the draft enforcement steerage following a 30-day remark interval ending on November 1st.
Background
With a 3-2 vote on August 22, 2023, the EEOC voted to maneuver ahead with publishing the draft enforcement steerage for public remark, with the three Democrats voting in favor and two Republicans voting to disapprove. This was one of many first votes made by Commissioner Kalpana Kotagal, whose swearing-in occurred weeks earlier in August, and it marks one in all some ways the brand new Democratic majority on the EEOC already has been exercising its energy to maneuver ahead with its public coverage agenda.
The draft enforcement steerage printed this October is the newest step in a course of that the EEOC began in 2015 and continued in 2016 with the publication of a bipartisan report on harassment, making suggestions to employers on steps to forestall harassment. Within the waning moments of the Obama administration, in January 2017, the EEOC solicited public feedback on a prior model of the draft enforcement steerage. And whereas in November 2017 the EEOC did publish a doc discussing “Promising Practices for Stopping Harassment” within the office, the EEOC has been silent for a number of years concerning the draft enforcement steerage. Employers can infer that at this time’s Democrat majority views lastly transferring ahead with the harassment steerage as an necessary a part of their coverage agenda, and employers can anticipate the tempo of this and comparable policy-driven efforts on the EEOC to speed up.
Substantive Areas of Curiosity within the Draft Enforcement Steerage
The draft enforcement steerage is each a compendium of labor accomplished within the office harassment house over the previous 37 years – from Meritor to #MeToo – and a sensible toolkit that goals to stay related and useful in no matter metaverse employers and employees discover themselves sooner or later.
Whereas elements of the draft enforcement steerage are largely noncontroversial in 2023 (for instance, it’s extensively understood that protected-class-based epithets can function the premise for a harassment declare), the draft enforcement steerage treads some new floor. As an illustration, it considers an employer’s obligation to handle the office results of an worker’s private social media exercise: “Conduct that may have an effect on the phrases and circumstances of employment, regardless that it doesn’t happen in a work-related context, contains digital communications utilizing non-public telephones, computer systems, or social media accounts, if it impacts the office.”
It stays unclear, nonetheless, when an employer shall be stated – or anticipated – to have information of that exercise or its potential spillover right into a hostile work atmosphere. It appears unlikely that the EEOC would encourage employers to watch their workers’ social media exercise, however what if a person supervisor sees one thing on an worker’s social media web page? Will that supervisor’s information be imputed to the employer? This “information” matter is additional sophisticated by the EEOC’s stance within the draft enforcement steerage that an employer can not avail itself of the Faragher-Ellerth affirmative protection to a hostile work atmosphere harassment declare if an worker “took [] cheap steps to keep away from hurt from the harassment” – even when the worker fails to make use of the employer’s criticism course of.
Getting into the post-Bostock period, the draft enforcement steerage is unambiguous in citing intentional misgendering or misnaming – or disallowing somebody from utilizing a restroom in step with their gender identification – as examples of sex-based harassment.
Potential Areas of Battle Between the Draft Enforcement Steerage and Current NLRB Selections
Ought to the draft enforcement steerage take impact as written, employers must thread the needle between the EEOC’s requirement that they act on out-of-work conduct that creates a hostile work atmosphere and the Nationwide Labor Relations Board (“NLRB”) August 2023 choice requiring that employers take care to not place impermissible restrictions on worker speech, together with out-of-work speech on social media. See Stericycle, Inc. and Teamsters Native 628, 372 NLRB No. 113 (2023) (holding {that a} facially impartial work rule is presumptively illegal if a “cheap” worker predisposed to participating in protected concerted exercise may interpret the rule to have a “coercive that means.”).
Employers may even must juggle the EEOC’s mandate that they “should take corrective motion that’s ‘fairly calculated to forestall additional harassment’” (emphasis added) with the NLRB’s Might 2023 choice prohibiting employers from disciplining workers for sure harassing conduct that happens whereas an worker is engaged in protected conduct. See Lion Elastomers LLC II, 372 NLRB No. 83 (2023) (holding that employers should consider worker misconduct, together with harassing conduct, in opposition to “setting-specific requirements” to find out whether or not the misconduct is afforded impunity as a result of the worker was engaged in conduct in any other case protected by the Nationwide Labor Relations Act). Whereas the NLRB acknowledges the priority that conflicts may come up between its holding and antidiscrimination legal guidelines, it says solely that it’ll cross that bridge if it comes. The draft enforcement steerage is silent on the subject.
The draft enforcement steerage is strong, and past defining and offering examples of probably violative conduct, it prescribes preventative conduct round implementing accessible and efficient insurance policies, procedures, and trainings, together with by offering a number of avenues for reporting harassment, requiring supervisors to report harassment, offering enough confidentiality and anti-retaliation protections, and guaranteeing that coaching is tailor-made to the office and offered to all workers on a “common foundation.” The EEOC invitations public touch upon the draft enforcement steerage earlier than November 1, and we anticipate that the EEOC will produce a remaining model of the Steerage after the remark interval closes. Seyfarth shall be working with shoppers and organizations that want to touch upon the Steerage, and when you’ve got particular suggestions or questions concerning the Steerage and its potential utility to your insurance policies and practices, please attain out to your Seyfarth contact.
