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  • Getting Ahead of the EEOC’s New Sexual Harassment Guidelines

    The Equal Employment Opportunity Commission (“EEOC”) recently announced that it would be updating its guidelines on workplace sexual harassment for the first time since the 1990s. The announcement comes on the heels of the “Me Too” movement and at a time when sexual harassment is squarely in the public spotlight. Within the past few years, the EEOC has addressed the issue of sexual harassment through studies and proposed new guidelines. This guidance issued by the EEOC should give employers a hint as to what will be in the new guidelines when they are released to the public.

    In 2016, the EEOC commissioned a special task force to study harassment in the workplace. At the conclusion of their study, the task force released a report that outlined a number of suggestions that employers should incorporate into their harassment policies and procedures. The task force recommends that anti-harassment policies are clear and communicated frequently to employees. They also suggest that employers implement multiple methods for employees to report harassment. There is also a suggestion that employers devote sufficient resources so that investigations are prompt and thorough and that if harassment is found, discipline is prompt and proportionate to the offense. Additionally, the task force recommends that employers test their procedures so that they are immediately effective when needed.

    The report also listed a few factors employers should be on the lookout for that the EEOC believes makes harassment more likely. The report cites a lack of diversity and workplaces where workers do not conform to workplace norms as two possible breeding grounds for harassment. The task force also found that workplaces with “high value” employees and significant power disparities also can lead to harassment. The belief is that having a few employees with a disproportionate amount of power may make others uncomfortable to report possible acts of sexual harassment committed by those with power. Finally, the task force found that workplaces that are too isolated or decentralized can also lead to harassment due to the lack of communication between organizational levels.

    In addition to their 2016 report, the EEOC also released a proposed update to their sexual harassment guidelines last year. This proposal could likely serve as the basis of the EEOC’s updated guidelines, making it important for employers to be aware of. In its proposal, the EEOC listed four “Promising Practices” to help eliminate workplace sexual harassment. The first two practices require employers to hold leaders accountable and to create a comprehensive harassment policy. Similar to its report on harassment, the EEOC calls for employers to have comprehensive and clear sexual harassment policies, as well as to provide consistent sexual harassment training. The EEOC also states that employers should seek feedback about their anti-harassment efforts through anonymous surveys to better fine tune their policies.

    The proposal recommends that employer’s implement a complaint system that encourages employees to report harassment as early as possible and to treat all parties impartially and with respect. The EEOC states that complaint systems should also protect the privacy of all parties and that alleged harassers are not prematurely disciplined. Employers must also ensure that those handling sexual harassment investigations are properly trained and have the power to conduct a thorough investigation.

    The final “Promising Practice” deals with effective harassment training. The EEOC states that sexual harassment training should be frequent and provided to all employees regardless of their position. This training should also be live and interactive to help enforce the serious nature of the issue. Training programs should also make clear what type of behavior is considered harassment and should be accordingly tailored to that specific workplace. Employers are also urged to review and update their training programs regularly.

    While it is important to note that the final guidelines have not yet been released, these suggestions and proposals are a good place for employers to start when reviewing their sexual harassment policies. Employers are encouraged to study the full text of the EEOC’s report on harassment and their proposed sexual harassment guidelines. Employers should also be on the lookout for the EEOC’s updated sexual harassment guidelines that should be released to the public soon. Adherence to those guidelines will go a long way in preventing employer liability for workplace sexual harassment.

    If you, or your institution, have any questions concerning sexual harassment training, policies, investigations or employment issues generally, please contact Cynthia A. Augello at caugello@cullenanddykman.com or via phone at 516-357-3753.

    Thank you to Ryan Soebke, a law clerk with Cullen and Dykman LLP, for his assistance with this post.