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Times have definitely changed – EEOC publishes updated guidance on Workplace Harassment to keep up with the times

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Societies can change a lot over the course of twenty years. Behavior that may have once been considered normal may now be frowned upon or deemed outright unacceptable. In the workplace, failing to “keep up with the times” and maintain a “harassment free” workplace can lead to significant liability.

Fortunately, the Equal Employment Opportunity Commission recently released updated workplace harassment guidance for the first time in over twenty years to bring employers and employees up to speed on changes in the law and the findings and recommendations made by the EEOC’s task force on harassment in the workplace. Its new guidance supersedes previous publications, including Compliance Manual Section 615: Harassment (1987); Policy Guidance on Current Issues of Sexual Harassment (1990); Policy Guidance on Employer Liability under Title VII for Sexual Favoritism (1990); Enforcement Guidance on Harris v. Forklift Sys., Inc. (1994); and Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999).

The enforcement guidance explains how to evaluate whether harassment violated federal EEO law and focuses on three components of a harassment claim:

  • Covered Bases and Causation: Was the harassing conduct based on the individual’s legally protected characteristic under the federal EEO statutes? Harassment is only covered by federal EEO laws if it is based on one (or more) of the individual’s characteristics that are protected by these laws. And, if an employee experiences harassment in the workplace but the evidence does not show that the harassment was based on a protected characteristic, the EEO statutes do not apply.
  • Discrimination with Respect to a Term, Condition, or Privilege of Employment: Did the harassing conduct constitute or result in discrimination with respect to a term, condition, or privilege of employment? For workplace harassment to violate the law, it must be based on a protected characteristic and affect a “term, condition, or privilege” of employment. To be actionable absent an explicit change to the terms or conditions of employment, the harassment must change the terms or conditions of employment by creating a hostile work environment.
  • Liability: Is there a basis for holding the employer liable for the conduct? One or more standards of liability will apply depending on the relationship of the harasser to the employer and the nature of the hostile work environment. The applicable standard depends on the level and kind of authority that the employer afforded the harasser to act on its behalf.

Key takeaways from the updated guidance include expanded definitions of the covered bases of race and color, national origin, religion, sex, disability, and age. For example, the guidance’s definition of sex-based harassment now includes harassment based on pregnancy, childbirth, and other related medical conditions, as well as sexual orientation and gender identity. Another update for the 21st century includes recognition that harassment can occur in a virtual work environment, such as through videoconferencing and emails.

Workplace harassment claims can be complicated, as a number of factors can play a role in determining whether the conduct rises to the level of harassment and whether the employer is liable. If you would like to speak to an experienced employment lawyer, contact us online or by phone at (513)202-0710.

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ADVERTISING ONLY: The information on this blog is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Past results obtained by Biller & Kimble, LLC are no guarantee of future results. Each case or matter is different and must be judged on its own merits.