Following the report of a 16-member task force led by Equal Employment Opportunity Commission (EEOC) Commissioners Chai Feldblum (D) and Victoria Lipnic (R) in 2016, last week the EEOC issued proposed guidance for public comment on or before Feb. 9.
In fiscal 2015, the EEOC received 27, 893 private-sector charges alleging harassment, representing more than 31 percent of all charges filed with the EEOC. As Commissioner Lipnic commented, harassment charges “remain a far too dominant part” of the agency’s workload.
The guidance is intended to assist not only EEOC employees, but employers and employees generally to understand the extent of the problem and ways in which harassment can be prevented and addressed. And it pulls that together in one document, superseding five existing EEOC enforcement documents.
One of the issues it addresses and seeks comments on is the two-prong test for determining whether harassment by a supervisor is actionable, even though there is no adverse employment action, if the employer acts promptly and appropriately on its first notice of such alleged conduct. Under the rule established by the U.S. Supreme Court in the Ellerth and Faragher cases, a defense to such liability requires not only that the employer act appropriately and promptly but also that the employee has “unreasonably” delayed in making a complaint. Subsequently, a federal Court of Appeals held that an employer could defend such a claim if it did everything appropriately and promptly, notwithstanding that the employee did not unduly delay in making a complaint, where this was the first notice to the employer of the problem. The proposed guidance, however, adheres literally to the Ellerth/Faragher standard requiring undue delay by an employee as well.
Another issue is the continuation of the EEOC’s position that Title VII bars claims based on gender identity and/or sexual orientation, a question currently under robust litigation in several courts.
Although the proposed guidance was issued in the waning hours of the Obama administration, it is likely to survive the change in administration. A major reason for this is that Commissioner Lipnic, who co-chaired the task force and co-authored the guidance, will likely be named the new chair of the EEOC in the next several days.