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August 20, 2024
By Anthony Cammarata Jr.

On April 29, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) issued the final version of its new Enforcement Guidance on Harassment in the Workplace, formally updating the EEOC’s position on the legal standards and employer liability under federal anti discrimination laws. The new guidance replaces five prior guidance reports on workplace harassment issued by the agency between 1987 and 1999. While not governing law, this new  guidance, which takes effect immediately, serves as a useful tool for employers and will certainly be referenced by EEOC staff, employment attorneys, and courts. As an employer, it is crucial to understand these changes and take proactive steps, or “reasonable care, to ensure compliance, including, but not limited to, implementing robust policies and procedures that prohibit harassment with clear examples of the types of proscribed behaviors.

The following is a brief summary of some of the key developments in the new guidance:

1. Expanded Definition of Harassment: The new guidance broadens the definition of harassment to include a wider range of behaviors. It emphasizes that harassment can be verbal, physical, or visual and does not have to be severe or pervasive to be illegal. This shift highlights the EEOC’s stance that even isolated incidents can create a hostile work environment if they are particularly egregious.
2. Protection for More Categories: The guidance expands protections to more categories of workers, including independent contractors, gig workers, and temporary employees.
3. Emphasis on Preventative Measures: The EEOC places a strong emphasis on the need for employers to adopt comprehensive preventative measures. This includes regular training for all employees, clear anti-harassment policies, and robust reporting and investigation procedures.
4. Accountability for Managers and Supervisors: Managers and supervisors are now held to a higher standard of accountability. The guidance underscores the responsibilities of employees in managerial roles in preventing and addressing harassment, making it clear that failure to do so can result in significant legal and financial repercussions for the employer.

In light of the new EEOC guidance, establishing a standard of “reasonable care” is imperative for employers to obtain an affirmative defense to liability for noncompliance. Employers should revisit and reinforce their company’s policies and procedures with an eye towards complying with the accompanying legal developments and illustrating that reasonable steps have been taken to prevent and correct harassment.

Some key considerations and action items to meet the “reasonable care” standard are listed below:

1. Comprehensive Anti-Harassment Policy: Draft an anti-harassment policy that is comprehensible, accessible, and well-communicated to all employees. Among other things, an effective anti-harassment policy clearly defines what conduct is prohibited, requires supervisors to report harassment when they become aware of it, offers multiple avenues for reporting harassment, identifies accessible points of contact to whom reports of harassment should be made, and explains in detail the employer’s complaint process, including the process’s anti-retaliation and confidentiality protections.
2. Regular Training and Education: Conduct regular training sessions for all employees, including managers and supervisors. To be effective, training should cover what constitutes harassment, how to report it, and the consequences of engaging in or ignoring harassment. Training should also be tailored to the specific workplace and presented in a clear, easy-to-understand style and format. Consider interactive and scenario-based training to make the content more engaging and relatable.
3. Robust Reporting Mechanisms: Establish multiple avenues for employees to report harassment, including anonymous options. Endeavor to make employees feel safe and confident that their complaints will be taken seriously, addressed promptly, kept confidential, and will not result in retaliation.
4. Thorough Investigation Procedures: Implement a thorough and impartial investigative process for all harassment complaints. Designate trained individuals or teams to handle investigations, ensuring they are conducted confidentially and efficiently. Document all steps taken during the investigation to maintain accountability.
5. Regular Policy Review and Updates: Periodically review and update anti-harassment policies and procedures to ensure they remain effective and comport with current legal standards. Regularly monitor the effectiveness of anti-harassment policies and training programs. Gather feedback from employees and make improvements as needed. Track incidents of harassment and assess whether they are being resolved in a timely and satisfactory manner.

The EEOC’s new guidance underscores the importance of preemptive measures and accountability in preventing harassment in the workplace. By staying informed and proactive, you can protect your employees, your company, and your company’s reputation. Even if you currently have an anti-harassment policy in place, it may be time to seek appropriate legal assistance to revisit and reinforce your company policies and take further actions to mitigate harassment in the workplace in light of this new EEOC guidance. The experienced attorneys at FCW can assist you to effectively address these concerns.

Anthony Cammarata Jr. is a partner with Flint, Connolly & Walker, LLP whose practice is focused on various corporate matters. He is experienced in a range of legal issues affecting employers and routinely assists clients in the development and implementation of company-wide policies and procedures, employment agreements, restrictive covenant agreements, and employee handbooks.