Seyfarth Synopsis: On October 2, 2023, the Equal Employment Alternative Fee (“EEOC”) printed discover of its “PROPOSED Enforcement Steering on Harassment within the Office” (“draft enforcement steering”) within the Federal Register. Employers ought to listen as a result of the draft enforcement steering units forth the requirements to which the EEOC will search to carry employers liable, and the EEOC is predicted to finalize and undertake the draft enforcement steering 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 steering 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 certainly one of 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 steering printed this October is the most recent 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 stop 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 steering. 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 relating to the draft enforcement steering. Employers can infer that in the present day’s Democrat majority views lastly shifting ahead with the harassment steering as an essential a part of their coverage agenda, and employers can count on the tempo of this and related policy-driven efforts on the EEOC to speed up.
Substantive Areas of Curiosity within the Draft Enforcement Steering
The draft enforcement steering is each a compendium of labor executed within the office harassment area 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 staff discover themselves sooner or later.
Whereas components of the draft enforcement steering are largely noncontroversial in 2023 (for instance, it’s broadly understood that protected-class-based epithets can function the idea for a harassment declare), the draft enforcement steering treads some new floor. For example, it considers an employer’s obligation to deal with the office results of an worker’s private social media exercise: “Conduct that may have an effect on the phrases and situations of employment, though 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 might be mentioned – or anticipated – to have data of that exercise or its potential spillover right into a hostile work setting. It appears unlikely that the EEOC would encourage employers to observe 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 data be imputed to the employer? This “data” matter is additional difficult by the EEOC’s stance within the draft enforcement steering that an employer can’t avail itself of the Faragher-Ellerth affirmative protection to a hostile work setting 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 grievance course of.
Getting into the post-Bostock period, the draft enforcement steering is unambiguous in citing intentional misgendering or misnaming – or disallowing somebody from utilizing a restroom per their gender identification – as examples of sex-based harassment.
Potential Areas of Battle Between the Draft Enforcement Steering and Current NLRB Choices
Ought to the draft enforcement steering take impact as written, employers should thread the needle between the EEOC’s requirement that they act on out-of-work conduct that creates a hostile work setting and the Nationwide Labor Relations Board (“NLRB”) August 2023 resolution 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 might interpret the rule to have a “coercive that means.”).
Employers can even should juggle the EEOC’s mandate that they “should take corrective motion that’s ‘moderately calculated to stop additional harassment’” (emphasis added) with the NLRB’s Might 2023 resolution 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, towards “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 might come up between its holding and antidiscrimination legal guidelines, it says solely that it’ll cross that bridge if it comes. The draft enforcement steering is silent on the subject.
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The draft enforcement steering is strong, and past defining and offering examples of doubtless 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 steering earlier than November 1, and we count on that the EEOC will produce a remaining model of the Steering after the remark interval closes.
