The contents of the U.S. Equal Employment Opportunity Commission’s (EEOC) final enforcement guidance on unlawful harassment — currently with the Office of Management and Budget for review — are “anyone’s guess,” Kristen Klein Wheaton writes in Law360; but the draft guidance provides some valuable clues to the definitions, outlines, and advice that employers should expect to find.
The draft guidance “provides a fairly thorough review of the covered bases of discrimination, the definition of ‘severe and pervasive,’ the scope of hostile work environment claims, an indication of when an employer will be liable for unlawful conduct, descriptions of systemic harassment, and ‘promising practices’ that outline how employers can reduce their potential liability,” Kristin writes. In her article, she takes a deep dive into many of these issues, providing a detailed assessment against which employers can measure the final guidance.
Employers can also use Kristin’s analysis to prepare for what are likely to be significant changes. As she notes, “The final guidance will supersede several previously issued EEOC documents: Section 615: Harassment, EEOC Compliance Manual, Volume II; Policy Guidance on Employer Liability for Sexual Favoritism (1990); Enforcement Guidance on Harris v. Forklift Sys. Inc. (1994); and Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999).”
Read the article: