Golden Opportunity for Business to Shape EEOC Harassment Guidance

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By Patrick Dorrian

Businesses now have a golden opportunity to shape the EEOC’s guidance on employee harassment.

The change in administrations and turnover in the top ranks of the Equal Employment Opportunity Commission may create a favorable opening for businesses, a pair of management-side attorneys told Bloomberg BNA.

Comments may be submitted for one more week on the agency’s draft enforcement guidance on identifying and preventing workplace harassment. There are several items that could use some clarification before being approved by the agency, Connie Elder Carrigan and Robin Shea said.

Given the widely held perception that the Trump administration will be more employer-friendly than the Obama administration was, the business community may want to “strike while the iron is hot” and tell the EEOC what it thinks of the proposed harassment guidance, Carrigan said. The agency’s new acting chair, Victoria Lipnic (R), “may be more swayable” than its prior chair, Jenny Yang (D), and former General Counsel P. David Lopez, Carrigan said.

Items of concern include a conflict between the EEOC’s call for “civility” training for employees and recent National Labor Relations Board rulings on worker free speech rights, said Carrigan, a partner with Smith Debnam in Raleigh, N.C.

“It could make a huge difference” for employers to provide feedback on the proposal, according to Shea. She is a partner with Constangy, Brooks, Smith & Prophete LLP in Winston-Salem, N.C.

Shea pointed to the EEOC’s position, stated in the draft guidance, that using a pronoun inconsistent with a worker’s gender identity in an offensive or persistent manner can amount to sexual harassment. That’s one item that could benefit from further explanation to account for situations in which co-workers make innocent mistakes, she said.

Both Shea and Carrigan worry that the agency’s view that behavior that is “hostile” to a worker should necessarily be considered to be “unwelcome” would, in effect, lower the U.S. Supreme Court’s standard for proving a claim of harassment based on sex or another protected trait.

Workplace Harassment a Persistent Problem

The EEOC issued the draft enforcement guidance for public comment Jan. 10. At 75 pages, it covers the waterfront on employee harassment issues, including the covered types of workplace behavior, how employer liability is determined and promising practices for preventing harassment.

If approved, the guidance would replace a number of other documents on the subject the EEOC has released over the years. While EEOC guidance doesn’t carry the force of law, it serves as a reference for agency staff, including during the investigation of discrimination charges.

The guidance grew out of the efforts of a 16-member task force formed by the agency to examine why workplace harassment remains such a persistent problem 30 years after the Supreme Court first recognized that such on-the-job abuse is prohibited under federal anti-bias laws. In announcing the proposed guidance, the EEOC noted that it received 27,893 private-sector charges alleging harassment in fiscal year 2015. That was more than 31 percent of all charges filed with the agency.

The task force included plaintiffs’ and management lawyers, representatives of employee and employer advocacy groups, academics from various social science disciplines and representatives from organized labor. It met several times both publicly and privately for more than a year before issuing a report of its findings in June. The report was authored by the co-chairs of the task force: Lipnic, who has been a commissioner since 2010, and Commissioner Chai Feldblum (D).

More Clarity on Pronoun Use Needed

The EEOC did a fine job with the draft guidance, but certain issues could use more clarification, Carrigan and Shea told Bloomberg BNA.

Shea said she understands that some managers or co-workers may intentionally refer to a transgender colleague by the wrong pronoun—calling someone who has transitioned or is transitioning from male to female “he,” for example—to get under the person’s skin and harass. But what happens, she asked, if someone who has worked with a transitioning or recently transitioned worker for years “innocently slips up”?

“I assume there’s some latitude” in the EEOC’s position on the issue, but it would be nice if the agency provided some examples of when pronoun misuse crosses the line into prohibited harassment, she said. The social mores with respect to some aspects of transgender rights are still being worked out by society, so employers could use more guidance, Shea said.

The EEOC also should be more clear about which choice of pronoun governs in such situations, Shea said. If co-workers refer to a female-to-male transgender colleague as “he,” but that person prefers to be called by some other pronoun, what, she asked, should an employer do?

She noted that guidance issued by the New York City Commission on Human Rights interpreting city civil rights law states that “Ze and hir are popular gender-free pronouns preferred by some transgender and/or gender non-conforming individuals.”

“If the EEOC is getting into the pronoun issue, it needs to be clearer” about what its position really is, Shea said.

Unwelcomeness Requirement Being Diminished?

Shea and Carrigan expressed identical concerns with the guidance’s statement that the EEOC “disagrees with courts that have analyzed ‘unwelcomeness’ as an element” of a plaintiff’s required preliminary showing in a harassment case, separate from an analysis of whether the work environment was both subjectively and objectively hostile. The agency is “putting the cart before the horse” with that approach, both attorneys said.

Whether workplace behavior such as a romantic overture was welcomed by the worker to whom it was made has long been the first step in the harassment analysis, Shea said. If the behavior was unwelcome, the next question is whether it was severe or pervasive enough to be actionable under federal anti-discrimination law. If it was welcome, however, the worker’s harassment claim fails, Shea said.

The standard laid out by the EEOC in its proposed guidance seemingly removes the subjectivity element from the harassment analysis, which requires proof of both objective and subjective offensiveness, Carrigan said. The EEOC apparently wants to reduce that equation to simply requiring a showing of objective offensiveness, she said.

“I’m not sure why the EEOC wants to do away with the unwelcomeness requirement” unless it’s to make workplace harassment claims easier to plead and prove, Shea said. She said it’s uncertain whether this part of the EEOC’s proposal will survive now that Lipnic is the agency’s acting chair.

Competing Mandates

The proposed guidance also suggests that companies may find it helpful to provide “workplace civility” or “bystander intervention” training to their employees as a way prevent unlawful harassment. At the agency’s June meeting discussing the task force’s workplace harassment findings, Commissioner Chai Feldblum described the latter type of training as empowering co-workers to report harassment or support colleagues who are subject to such abuse.

However, that recommendation puts employers in a Catch-22 between the EEOC and the NLRB, Carrigan said. The latter agency has issued a number of rulings in the past two to three years limiting employers’ ability to set policy on their employees’ social media use, to direct employees not to discuss ongoing workplace investigations and to counsel workers to treat each other civilly and with respect. The NLRB ruled that such workplace restrictions violate Section 7 of the National Labor Relations Act, because they might chill worker free-speech rights, she said.

Thus, employers had to be careful under President Barack Obama about how they conducted workplace investigations into alleged uncivil and potentially harassing workplace behavior, she said. That has been a source of angst for management counsel as well, because it’s hard to advise a company how to comply with both anti-discrimination requirements and the NLRB’s position, Carrigan said.

The EEOC’s call for employee civility training clouds the issue even further, because it is directly at odds with the NLRB’s position, she said. “It would be nice if we had some guidance on how one complies with” both agencies’ mandates, she said.

She added, however, that the feeling now is there will be a lot less enforcement by the NLRB of its position “down the pike” with Trump set to restock the board with Republican appointees who are likely to have a more employer-friendly outlook.

When and How to Comment

The deadline for public comment on the EEOC’s proposed harassment guidance is Feb. 9. Those wishing to weigh in on the proposal can do so by submitting comments electronically at https://www.regulations.gov/docket?D=EEOC-2016-0009 or by mailing them to: Public Input, EEOC, Executive Officer, 131 M St. NE, Washington, D.C. 20507.

With EEOC policy perhaps more open to influence by the employer community now than it’s been in the past eight years this is the chance for employers to speak up if they have had issues with the way the agency has been interpreting workplace harassment law, Carrigan said. That the EEOC’s strategic enforcement plan for 2017-2021 is already in place “doesn’t mean it isn’t open to a more management-friendly” reading, she said.

EEOC guidance is useful to employers in their efforts to comply with the law, and “the more guidance, the better” since it helps companies avoid potential “gotcha” scenarios with the agency, she said. “My experience is that EEOC staff” is fair, reasonable and straightforward about what they expect from a compliance standpoint, she said.

Employers haven’t always had the ability to comment in advance on EEOC enforcement guidance, Shea said.

Indeed, the agency first began eliciting public views on draft guidance in January 2016 when it proposed updated guidance on employer retaliation.

If business “wants more concrete guidelines on what are new issues for many,” now is the time to ask for it, Shea said. With the change in administrations, the timing could be good, she said.

It could be an opportunity for the new administration to respond to employer concerns by providing better examples on various aspects of the EEOC’s proposed harassment guidance, she said. Such examples may not have been forthcoming under the Obama administration, but employers may have better luck under Trump, Shea said.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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