(This column originally appeared in The Inquirer)
Harassment remains a serious workplace problem. Between fiscal years 2016 and 2022, more than one-third of charges received by the commission included an allegation of harassment, according to the Equal Employment Opportunity Commission (EEOC).
In September, the EEOC announced new guidelines governing the harassment of workers both in and out of the workplace that will have a significant impact on businesses that have more than 15 employees. The rules concern Section VII of the 1965 Civil Rights Act, which have not been updated for over 30 years.
“Preventing and addressing harassment in America’s workplaces has long been a key priority for the EEOC, and this guidance will provide clarity on new developments in the law and build on the Commission’s previous work,” said EEOC Chair Charlotte A. Burrows.
In its expanded guidelines, expected to take effect this quarter, the EEOC provides more than 30 examples of situations that could create a hostile workplace environment, from harassment during a party hosted by an employer off site to hostile work environments even as an employee continued to perform well.
The guidelines are “dense but helpful” according to Michael Truncellito, an attorney at Buchanan Ingersoll & Rooney PC, but “are mostly focused on four areas.”
The updated rules forbid any harassment toward LGBTQ+ employees by their fellow workers which includes slurs, bullying, or intentional and repeated misgendering. According to the EEOC, if an employer does not provide gender neutral bathrooms, the refusal to allow employees to use bathrooms that align with their gender identity can contribute to a hostile work environment.
“It’s not a mandate to have a gender-neutral bathroom,” said Truncellito. “But having one available can alleviate potential workplace issues as it allows for an alternative if a particular employee is uncomfortable with other employees using bathrooms based upon gender identity.”
Employees who are pregnant or recently gave birth will also find themselves enjoying better protections under the updated guidelines. Employers who do not provide private areas for lactation could find themselves under more scrutiny.
Religion and abortion beliefs
The guidelines want to ensure that no one in the workplace should feel uncomfortable because of their religious beliefs, and no employee should be behaving in such a way that makes others feel uncomfortable. It includes “the use of religious epithets or offensive comments based on a complainant’s religion, including atheism or lack of religious belief, religious practices, or dress” and also includes “harassment based on religious stereotypes and harassment because of a request for a religious accommodation or receipt of a religious accommodation.”
Discussions in or out of the office by employees regarding contraceptive or abortion choices could be considered to be harassment if an employee feels uncomfortable by the conversation, whether included or not.
Finally, the EEOC is addressing any harassment that may occur in a virtual or off-site environment. That could mean derogatory or inflammatory statements made by one employee to another over social media, in online meetings, or even at an off-site company gathering.
“This could happen if there was an online posting between employees that was mocking another employee and that employee saw it and considered it hostile,” Truncellito said. “Conduct that occurs perhaps on social media, even if it’s private, can be a problem.”
Truncellito also warns that an employer could be liable for the behavior of an outsider — for example a supplier or customer — during an online meeting if it creates a hostile work environment and the employer is aware but takes no action.
Training is critical
It’s important that employers prepare for the rule change. Training, most experts agree, is critical.
New Jersey law requires employers to provide interactive training on unlawful discrimination and harassment. Delaware’s sexual harassment prevention training laws require that all employers with 50 or more employees provide similar training within one year of hire. Pennsylvania does not mandate training.
In order to be effective, the EEOC says that training should follow a number of guidelines including describing and providing “examples of prohibited harassment, as well as conduct that, if left unchecked, might rise to the level of prohibited harassment.” Supervisors and managers should be provided “information about how to prevent, identify, stop, report, and correct harassment, such as actions that can be taken to minimize the risk of harassment, and clear instructions for addressing and reporting harassment that they observe, that is reported to them, or that they otherwise become aware of.”
Process and reporting is also important
It’s also important to have a good mechanism for reporting and addressing any potential issues. Employees should know that if they feel uncomfortable there’s a procedure to follow that will allow them to confidentially discuss the issue and see it through to resolution.
Finally, it’s critical to update your policies so that they are completely in compliance with the new EEOC rules. It should be stated in writing that there is zero tolerance towards all forms of harassment and discrimination. Truncellito advises his clients to make sure that all employees sign off that they’ve read and acknowledged the policy.
“Prevention is important but what’s equally important is how an employer reacts to potential harassment issue,” said Truncellito. “While one incident can alone trigger liability depending on the severity, if an employee is being put in the same uncomfortable position over and over again and you’re not doing anything to address the conduct, an employer may be held liable.”