On January 10, 2017, the U.S. Equal Employment Opportunity Commission (“EEOC”) released proposed guidance on unlawful harassment under federal employment discrimination laws. Though not yet final, the proposed guidance provides insight into the EEOC’s current priorities and its interpretations of laws relating to claims of harassment against employers based on race, color, religion, sex, national origin, disability, age, and genetic information.
One major focus of the proposed guidance is under what circumstances an employer can be held liable for one employee’s harassment of another employee. The four liability standards discussed by the proposed guidance are:
(1) Employers Are Strictly Liable for Harassment by a Proxy or Alter Ego
The proposed guidance states, “[i]f the harasser is a proxy or alter ego of the employer, the employer is strictly liable for the harasser’s conduct.” This standard applies to individuals who are so highly placed within the employer entity that they effectively have the ability to speak or act on the employer’s behalf (e.g., partners, owners, corporate officers, and high-ranking supervisors). The proposed guidance provides that there “is no defense to liability” for an employer whose proxy or alter ego harasses an employee because “the actions of the harasser are considered the actions of the employer.”
(2) Employers Are Vicariously Liable for Harassment When a Supervisor Imposes a Tangible Employment Action Against the Victim
The proposed guidance states, “[i]f the harasser is a supervisor and the hostile work environment includes a tangible employment action against the victim, the employer is vicariously liable for the harasser’s conduct. There is no defense to liability.” A “tangible employment action” means a “significant change in employment status” caused by an official act of an employer (e.g., hiring, firing, promotion, demotion, failure to promote, negative reassignment, and changes to compensation and benefits). “Vicarious liability” means that an employer will be responsible for a supervisor’s actions. Thus, under this standard, an employer would be liable for a supervisor’s harassment when the supervisor uses an official act (i.e., a tangible employment action) to harass an employee.
(3) Employers Can Be Vicariously Liable for Harassment Even When a Supervisor Does Not Impose a Tangible Employment Action Against the Victim
The proposed guidance states, “[i]f the harasser is a supervisor, and the hostile work environment does not result in a tangible employment action, the employer is vicariously liable for the actions of the harasser. The employer, however, may limit its liability if it can prove a two-part affirmative defense.” To limit liability, the employer has the burden to prove both that (1) “[t]he employer exercised reasonable care to prevent and correct promptly any harassment,” and (2) “[t]he employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to take other steps to avoid harm from the harassment.”
Unlike the previous standard, this standard provides a way for an employer to defend itself from the actions of a supervisor. To increase the chances of proving the elements of this two-prong defense, employers should maintain anti-harassment policies, implement a robust process for handling harassment complaints, train all employees to know their rights under the policy, and monitor compliance with the policy throughout the workplace.
(4) Employers Can Be Liable for Any Employee Who Creates a Hostile Work Environment
The proposed guidance states, “[i]f the harasser is not a proxy or alter ego of the employer and is not a supervisor, the employer is liable for the hostile work environment created by the harasser’s conduct if the employer failed to act reasonably to prevent the harassment or to take corrective action in response to the harassment when it was aware or should have been aware of it.” This means an employer has the potential to be liable for any employee’s harassment in the workplace. The anti-harassment policies, procedures, and training discussed above are vitally important under this standard as well because this standard requires employers to be able to detect and correct issues it may not even know about. The proposed guidance even explains that an employer could possibly still be liable in a situation where the victim does not report the harassment to the employer.
The entire proposed guidance can be found here: https://www.eeoc.gov/eeoc/newsroom/release/1-10-17a.cfm
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