In January 2017, the Equal Employment Opportunity Commission released proposed guidance regarding workplace harassment.  Because guidance does not carry the same weight as regulations do, which require a formal notice and comment period, there is no legal requirement to solicit public comment on guidance.  However, the practice of voluntarily doing so began under former Chair Jenny Yang and provides employers a valuable opportunity to make their concerns known before the Commission finalizes guidance.

To that end, Shawe Rosenthal, in conjunction with four other law firms, led the effort on behalf of the Employment Law Alliance* to submit written comments  to the Commission’s proposed harassment guidance.  The comment period has closed, and we expect revised guidance to issue—hopefully factoring in some of our comments below!—in a few months.

Our comments were part of Employment Law 360’s top story, EEOC Draws Fire For Stance on Orientation Bias on Monday.  The ELA raised that the Commission’s inclusion of gender identity, transgender status, an individual’s intent to transition, and sexual orientation as all being within Title VII’s purview “goes beyond the plain language and legislative intent” of the statute and “reflects the commission’s impermissible trespassing into legislative rulemaking.”  The Chamber of Commerce and SHRM also expressed concerns that the guidance did not comport with current case law on this issue.

The ELA comments also addressed several other 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 guidelines cite to cases that hold an employer can be vicariously liable for the conduct of a non-supervisor when the complainant “reasonably believes” based upon employer actions that the alleged harasser has authority over him or her. Because this situation is highly unusual, ELA requested that the Commission remove this section from the guidance or include a statement that such situations are rare.

• The guidance proposes wholesale elimination of the “unwelcomeness” prong of the hostile work environment analysis. Instead, the guidance would import the unwelcomeness prong into the objectively hostile prong.  The ELA comments note that a change to the well-accepted hostile work environment analysis is not supported by case law, and, in fact, the EEOC’s only cited authority were journal articles.

• ELA requested that the guidance clarify that unspecified general fear of retaliation, without more, cannot justify a failure to complain of a hostile work environment.

• On the final page of the guidance, the Commission urges employers to conduct civility and bystander training. ELA takes issue with these recommendations for several reasons.  First, well-settled jurisprudence holds that Title VII is not a civility code, so conducting civility training does not prevent harassment. Moreover, the recommendation potentially runs afoul of NLRB decisions that state employers’ workplace civility policies are illegal.

* The ELA is an integrated, global practice network with more than 3,000 lawyers across more than 120 countries, all 50 U.S. states and every Canadian province. As the world’s largest practice network, the ELA provides multi-state and multi-national companies labor, employment and immigration services. The ELA has more Chambers-ranked firms than any other law firm alliance in the world. Law firms are invited to become ELA members only after a rigorous due-diligence process, including consultation with experienced in-house counsel, judges, current members, and industry leaders. Our members have significant expertise in employment-related matters.  Shawe Rosenthal is a founding member of the ELA.