NT Lakis lawyers have filed written comments with the Equal Employment Opportunity Commission (EEOC) regarding the agency’s proposed enforcement guidance on workplace harassment liability under the laws enforced by the EEOC. The revised guidance, once adopted, will supersede existing commission policy guidance on the topic.
The draft guidance is ostensibly designed to update and refresh existing policy interpretations on workplace harassment issues that in some cases have not been revised in decades. At the same time, as we point out in our comments, the document also contains several novel legal positions and/or reinforces questionable EEOC policy interpretations that are inconsistent with statutory and case law.
More specifically, our comments recommend that the EEOC:
- Refrain from interpreting Title VII to encompass lesbian, gay, bisexual, and transgender (LGBT) bias protection outright until the Supreme Court adopts that interpretation or Congress amends federal law accordingly;
- Confirm that harassment is actionable only if it is “because of” a federally protected characteristic;
- Adhere to settled law regarding what conduct is sufficient to establish an actionable hostile work environment; and
- Refrain from limiting the scope and applicability of employer defenses to liability for workplace harassment.
Members of the Equal Employment Advisory Council (EEAC) can read more here.