The Equal Employment Opportunity Commission, spurred by the #MeToo movement and other societal changes, is planning a major overhaul of its stance on workplace harassment – one that takes into account remote work in our digital age.
What does this mean for your business, and how should you prepare? Let’s break it down.
The EEOC, known for its enforcement of federal laws prohibiting workplace discrimination, proposed its updated guidance on workplace harassment in early fall. If you're keeping track, it's been about 25 years since we last saw any significant changes in this domain. These new guidelines not only clarify but also expand on what constitutes harassment under Title VII of the Civil Rights Act of 1964. They come at a time when a staggering one-third of charges received by the EEOC between 2016 and 2022 included harassment allegations.
The digital age, with its tweets (or, should we say, X-posts?), Facebook rants, and Zoom backgrounds, is now under the EEOC's microscope. Say an employee's online criticism of a colleague hampers work or an unintentional display of cultural symbols on a video call causes discomfort. It's not just office gossip anymore; it's a potential lawsuit in the making.
You may (or may not) remember the Supreme Court’s monumental 2020 decision in Bostock v. Clayton County. Well, discrimination based on gender or sexual orientation was held to be a violation under Title VII in that case.
Many of the proposed changes in the guidelines lean heavily into these recent developments, setting a clearer path on discrimination bases, defining what qualifies as unlawful harassment, and delineating employer liability.
One example of unlawful conduct that appears in a draft of the EEOC’s updated guidelines includes intentional and repeated use of a name or pronoun inconsistent with an individual’s gender identity.
Same goes for denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.
The guidance also says that a hostile work environment can arise virtually when sexist comments are made during a video meeting, racist imagery is visible in an employee’s workspace during a video meeting, or sexual comments are made during a video meeting.
Assigning a pregnant factory worker administrative duty to lessen the physical demands of her job also can get an employer in hot water.
The Path Ahead
For employers, this proposed guidance can be summed up in three words: policies, reporting, and training.
Revisit those dusty internal harassment policies. Ensure there's a straightforward, confidential channel for employees to raise their concerns. Training isn't just a formal requirement; it's a shield against potential lawsuits. Engage with HR specialists, consult employment experts, and always keep a finger on the pulse of evolving norms.
At minimum, employers should:
- Have a written policy against harassment and process for addressing harassment complaints;
- Provide training to ensure employees know their rights and responsibilities under the policy; and
- Monitor employees’ workplaces for compliance.
Oh, and lest we forget, it’s probably a good time to check your Employment Practices Liability Insurance policy limits and exclusions. EPLI covers the legal fees, settlements and judgments that result from employment-related cases.
While it's undeniable that everyone deserves a comfortable and safe working environment, some may see opportunities to exploit the system, leading to frivolous claims.
The EEOC's actions serve as a reminder: in today’s digital, interconnected world, businesses must tread carefully, balancing growth with responsibility. Whether you're a startup or an industry stalwart, it's clear – the future of work is not just about what happens within office walls.
The EEOC provides the following and other additional resources relating to workplace harassment:
- Home pages on Harassment, Sexual Harassment and Retaliation
- Select Task Force on the Study of Harassment in the Workplace
- Promising Practices for Preventing Harassment
- Enforcement Guidance on Retaliation and Related Issues
The Mahoney Group, based in Mesa, Ariz., is one of the largest independent insurance and employee benefits brokerages in the U.S. For more information, visit our website or call 877-440-3304.
This article is not intended to be exhaustive, nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel or an insurance professional for appropriate advice.