Management's Workplace Lawyers

Shawe Rosenthal "Runs Point" on Comments on the EEOC's Proposed Harassment Guidance

March 31, 2017

Shawe Rosenthal, in conjunction with four other law firms, led the effort on behalf of the Employment Law Alliance (of which we are a member) to submit written comments on the Equal Employment Opportunity Commission’s Proposed Enforcement Guidance on Unlawful Harassment.

In 2016, the EEOC issued a report on workplace harassment. Following that report, the EEOC then proposed to issue an Enforcement Guidance that set forth the Commission’s interpretation of harassment law and suggested prevention strategies. The EEOC invited the public to submit comments on the proposed Guidance, which will be reviewed and potentially incorporated into the final Guidance.

In addition to generally objecting that the EEOC’s Guidance is not binding law, the ELA’s comments addressed several aspects of the Guidance that are problematic for employers, including:

  • The Guidance would broadly consider conduct occurring in a non-work related context as part of a hostile work environment.  The ELA comments urge the Commission to limit incidents comprising a hostile work environment to those occurring in the physical workplace and/or at work-related event, and, consistent with relevant case law, only consider outside-of-work conduct when it is carried out by an employee with direct supervisory authority, occurs at a work-related event, or occurs between co-workers who constantly work with and see each other inside the workplace.
  • The Guidance states that harassing conduct may include conduct that is not directed at the complaining party and/or occurs outside his or her presence.  The ELA comments point out that this position relies on hand-picked case law and ignores precedent to the contrary.  This position also fails to clarify that the courts that do permit “second-hand” harassment grant far less weight to those incidents.
  • The ELA requested clarification on the Guidance relating to postings on social media accounts.  Specifically, the ELA asked the Commission to acknowledge an employer’s limitations in evaluating and remedying social media postings.  The ELA also urges that social postings should only be considered as part of a hostile work environment claim when there is clear evidence that the post was actually discussed inside the workplace, and when the employer has been made aware of such discussions.
  • The ELA objected to the Commission’s impermissible trespassing into legislative rulemaking by including gender identity, transgender status, intent to transition, and sexual orientation within the prohibition of sex-based harassment under Title VII.

The ELA’s comments were cited in the lead article of Law360’s March 27, 2017 edition of its daily newsletter (registration required for access), discussing concerns about the proposed guidance.

Lindsey White, formerly an EEOC Trial Attorney and now a senior associate with Shawe Rosenthal, co-chaired the ELA workgroup and was heavily involved in drafting the comments submitted by ELA.