On February 3, the EEOC extended the public input period on its draft harassment enforcement guidance for an additional 40 days. The EEOC released its draft harassment enforcement guidance for public input initially on January 10. Following a 2016 task force study, the EEOC concluded that harassment in the workplace remains a serious problem, reporting in the document that in 2015, nearly one third of approximately 90,000 charges the EEOC received contained allegations of workplace harassment. The public input period is now set to close on March 21.
The EEOC’s guidelines are not binding law, but they are helpful and influential tools of the trade in a number of ways. EEOC guidance documents, such as the workplace harassment guidelines, generally set forth the Commission’s positions on the laws it enforces and contain the Commission’s analyses. The EEOC and other agencies often rely on these guidance documents and use them as a reference in investigating, adjudicating, and litigating claims. This process can affect the outcome of claims filed against employers.
The proposed guidelines cover a range of issues from types of unlawful workplace behavior and determining employer liability to tips on preventing harassment in the workplace. If approved, the guidelines would replace several existing harassment guidance documents and implement more recent applications of the law, such as harassment based on gender identity and sexual orientation. The guidelines would also serve to create uniformity in the law, where lower courts have not applied the law consistently, and where the EEOC’s interpretation of the law is different.
Now is an opportune time for employers to provide their feedback, comments and concerns about the proposed guidelines. In light of President Trump’s new administration and recent appointment of Victoria Lipnic to Acting Chair of the EEOC, employers are in a good position to influence the Commission. If the guidelines are passed, employers will be among the most affected, especially given the prevalence of workplace harassment charges reported by the Commission.
For more information on how to submit a public comment, visit the EEOC’s website here.