The Equal Employment Opportunity Commission (EEOC) has published for public comment a draft guidance document to address workplace harassment liability under the federal EEO laws the agency enforces. Described as a “companion piece” to the EEOC’s June 2016 Task Force Report on Harassment — which focused on prevention strategies — the draft guidance outlines a single set of legal standards applicable to harassment that occurs on any protected basis, and is intended to replace or update several existing guidance documents dealing mainly with employer liability for sexual harassment.
Among other things, the draft guidance addresses the protected categories covered by federal anti-harassment laws, the basis for establishing a threshold claim of unlawful harassment under any of those laws, and the legal standard for holding an employer liable for unlawful harassment. It also concludes with several suggested “promising practices” for successfully preventing and correcting workplace harassment.
Predictably, the EEOC takes an expansive view on coverage, scope, and breadth of legal liability for unlawful harassment, which in several instances goes well beyond settled legal principles. For example, the draft guidance provides that sex-based harassment categorically includes harassment based on “gender-stereotyped assumptions about family responsibilities,” gender identity, and because an individual “is lesbian, gay, bisexual, or heterosexual.”
The EEOC has invited the public to provide input on the draft guidance. The EEOC’s comment deadline is February 9, 2017.
Members of the Equal Employment Advisory Council (EEAC) can read more here.