The Equal Employment Opportunity Commission (EEOC) is working to finalize its first comprehensive guidance in over two decades to help employers recognize and prevent prohibited harassment in the workplace. The guidance is not legally binding but attempts to clarify the EEOC’s position as to the kinds of conduct that will be considered discriminatory.
A consistently high number of workplace harassment complaints in recent years prompted the updated guidance, which incorporates contemporary developments in workplace discrimination laws. The guidance includes many hypothetical examples to help employers create effective policies against workplace harassment.
Workplace Harassment Is an Ongoing Problem
Harassment in the workplace is a type of employment discrimination that can violate several federal statutes. Over 34% of the charges received by the EEOC between 2018 and 2022 included allegations of harassment. The EEOC defines harassment as “unwelcome conduct” based on sex (including sexual orientation, gender identity, or pregnancy), race, national origin, color, religion, disability, genetic information (including family history), and age (40 and up).
Harassment in the workplace violates the law when it becomes a condition of continued employment. It can also occur when a coworker’s or manager’s behavior is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
Prohibited harassment also includes conduct done in retaliation for making or participating in employment discrimination claims or lawsuits. The alleged conduct must be significant enough to offend the sensibilities of a reasonable person. The laws do not intend to penalize conduct described as petty slights, annoyances, and non-serious isolated incidents.
What the EEOC Enforcement Guidance Says About Harassment in the Workplace
The proposed EEOC guidance provides a framework for determining whether unwelcome conduct in the workplace meets the requirements for employment discrimination. The guidance focuses on the three necessary components required to establish a harassment claim:
- Was the conduct complained of based on a legally protected characteristic under federal law?
- Did the conduct result in discrimination with respect to a term, condition, or privilege of employment?
- Is there a basis for holding the employer liable for the conduct?
Legally Protected Characteristics
Harassment can only be employment discrimination when the basis for the conduct is a legally protected characteristic. Legally protected characteristics include cultural or social expectations (stereotyping) regarding the actions, appearance, or behavior of a protected group.
A complainant need only show that the conduct occurred because of a protected characteristic. The context of the conduct and the surrounding circumstances are important factors in determining motivation.
The EEOC says it will enforce what it calls “associational discrimination” – harassment because a complainant associates with a member of the same or another protected group.
Terms, Conditions, and Privileges of Employment
The alleged harassment must affect a term, condition, or privilege of employment, which the U.S. Supreme Court has said can include:
- Explicit changes in the terms or conditions of employment linked to the harassment – such as firing an employee for refusing sexual advances or
- Constructive changes in the terms or conditions of employment by creation of a hostile work environment
Hostile Work Environment
A hostile work environment is established when unwelcome conduct is “severe or pervasive” enough to alter a claimant’s work environment and make it abusive. The determination is based on all of the contributing circumstances. A hostile work environment is generally not created by merely offensive conduct that is boorish, juvenile, or annoying, but it’s not necessary to prove the conduct was so severe it resulted in psychological harm.
Conduct contributing to a hostile work environment need not occur in the usual workplace as long as it occurs in a work-related context. Even conduct that does not occur in a work-related context can support a hostile work environment if it has an impact on the workplace.
There are important considerations that are relevant when deciding whether a hostile work environment exists, including:
- The frequency and severity of the conduct
- The degree to which the conduct was physically threatening or humiliating
- The degree to which the conduct interfered with the claimant’s work performance
- The psychological damage caused by the conduct
The conduct must be both subjectively and objectively unwelcome. The claimant must prove the conduct was personally unwelcome and that a reasonable person similarly situated would also conclude that the conduct would be unwelcome.
Employer Liability Standards
If it is found that an employer made an explicit change to a term, condition, or privilege of employment linked to harassment, the employer is liable to the employee for discrimination and has no defense. Whether the employer is at fault for a hostile work environment depends on its relationship to the alleged harasser.
For those with high rank or authority who serve as proxies or alter egos for the company, their actions are considered the same as the employer’s. The actions of supervisory personnel (who are not proxies or alter egos) can create vicarious liability for an employer.
If a supervisor’s harassment included a “tangible employment action” (involving a significant change in employment status), the employer is liable with no defense. However, if the harassing supervisor did not take a tangible employment action, an employer may have an affirmative defense to vicarious liability if it can prove both of the following conditions:
- The employer acted reasonably to promptly correct and prevent harassment.
- The employee unreasonably failed to use the employer’s complaint procedure or to take other steps to minimize or avoid the claimed harm from harassment.
When the harasser is a coworker or non-employee, an employer is liable only if it is negligent because it unreasonably failed to prevent the harassment or failed to take reasonable corrective action in response to harassment about which it knew or should have known.
How Employers Can Protect Themselves from Employment Discrimination Claims for Harassment
The EEOC advises employers that the best way to prevent harassment in the workplace is to create a strong culture of intolerance. An EEOC study identified five practices that have proven generally effective at preventing or correcting workplace harassment:
- Communicating a strong commitment to harassment prevention by senior leadership
- Taking immediate and appropriate action on all harassment claims
- Creating a comprehensive and clear harassment policy that is widely available
- Establishing an accessible and impartial harassment complaint process
- Conducting regular anti-harassment training for all employees
For Texas employers with questions about preventing harassment in the workplace or that are facing a workplace harassment claim, the labor and employment attorneys at Fee, Smith & Sharp, LLP can help protect your interests and minimize any potential damage. Contact us today.
