United States: Government Heal Thyself – Lessons For Private Employers Revealed In EEOC Public Sector Harassment Guidance

Seyfarth Synopsis: The EEOC has released technical assistance on preventing workplace harassment in the federal sector. While the guidance does not specifically apply to private employers, it provides important lessons for employers when dealing with workplace harassment and avoiding liability in employment litigation, and insight into how the EEOC views these concepts.

On April 20, 2023, the U.S. Equal Employment Opportunity Commission ("EEOC") issued a technical assistance document, Promising Practices for Preventing Harassment in the Federal Sector, which provides practical tips for preventing and addressing workplace harassment. While the guidance is geared toward federal government employers, it provides helpful recommendations applicable to the private sector as well, and also provides an important perspective on how EEOC enforcement efforts may be evolving. Some of the highlights are discussed below.

Leadership and Accountability

According to the EEOC, all employers should establish and maintain an anti-harassment program, with neutral staff-members who are responsible for promptly, thoroughly, and impartially investigating allegations of harassment, and taking immediate and appropriate corrective action. Federal agencies must begin investigations within 10 calendar days of receipt of the harassment allegation. While there is no specific time period within which private sector employers must investigate internal allegations of harassment, liability can often hinge on the promptness of the investigation and remedial measures. As such, all employers should begin workplace harassment investigations as soon as practicable. As a practice tip, however, employers may consider this 10-day interval as one at least facially supported by the EEOC,

The guidance also recommends that employers take other actions to demonstrate commitment to preventing and addressing harassment, such as conducting climate and exit surveys, reviewing harassment allegations to guide future policy changes, and ensuring that consistent penalties are implemented and enforced in the event that workplace harassment occurs.

Comprehensive and Effective Anti-Harassment Policy

The EEOC states that government employers should establish and maintain a comprehensive anti-harassment policy that is regularly disseminated to all employees. Such a policy is often an important element of an effective harassment prevention strategy, and also helps private employers limit liability. In its guidance, the EEOC requires federal agency policies to provide a clear explanation of prohibited conduct, and prohibit harassment on all protected bases, including race, color, sex (including sexual orientation, gender identity, and pregnancy), national origin, religion, disability, age (40 years or older), genetic information (including family medical history), and retaliation. Employers should note, however, that protected categories may vary by jurisdiction, and workplace harassment policies generally provide broader coverage than the law requires.

According to the EEOC, the policy should provide multiple avenues for employees to report harassment, including individuals or departments outside the employee's reporting chain of command. The guidance provides that the policy should also include assurances that employees making complaints of harassment will be protected from retaliation, that the employer will take prompt corrective action to prevent or address harassing conduct, and keep identity of individuals involved (i.e., the complainant, witnesses, alleged victim, and alleged harasser) confidential, to the extent possible, consistent with legal obligations and the need to conduct a thorough investigation.

The EEOC also recommends implementing additional measures, such as:

• Providing explicit assurances that the policy applies to all employees;
• Widely disseminating the policy, and making the policy available both onsite, and online;
• Allowing for anonymous reporting of harassment through platforms, such as hotlines and websites;
• Ensuring that reports of harassment and harassing conduct are well-documented;
• Ensuring that investigations are not conducted by individuals who have a conflict of interest or bias; and
• Providing guidance on the processes and procedures for addressing harassment allegations involving non-employees, such as contractors, guests, volunteers, or customers.

Effective Anti-Harassment Training

The EEOC stresses that to help prevent and properly address harassment, employees and management must be aware of what conduct is prohibited and how to prevent and correct it. As such, federal agencies are required to conduct periodic anti-harassment training to both supervisory and non-supervisory employees at all levels. The EEOC does not identify what it considers "compliance."

Private employers should try to establish such training where possible as it can prevent harassment, boost employee morale and a sense of workplace safety, and help employers limit liability. The EEOC recommends that the training be tailored to the specific workplace, and regularly updated to ensure compliance. When considering such a policy, it is important to note that some states, such as California, Illinois, and New York require anti-harassment training, and some cities, such as Chicago and New York City, have additional requirements. Many other states and municipalities are considering implementing workplace harassment measures.

Implications for Employers

Though the EEOC's technical assistance is geared towards federal agencies, the document provides useful insights for private employers attempting to determine what the EEOC considers to be an adequate anti-harassment program. This includes establishing and widely disseminating anti-harassment policies, promptly investigating internal complaints, taking prompt and effective remedial measures where appropriate, and conducting regular anti-harassment trainings. In establishing an anti-harassment program, employers should look beyond the technical assistance document and also take into account any relevant state and local laws. If you have questions about your anti-harassment practices, or any threatened or pending harassment litigation, contact your Seyfarth attorney or the authors of this post.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.