EEOC Releases Proposed Workplace Harassment Guidelines

EEOC Releases Proposed Workplace Harassment Guidelines

The EEOC recently released its Proposed Enforcement Guidance on Unlawful HarassmentThis 75-page document highlights the key strategies and points of emphasis the Agency seeks to use when investigating and prosecuting charges of workplace harassment. If implemented after public comment the document will not hold the force of a regulation but will provide key insight as to how and what the EEOC will focus on when determining whether or not a charge of harassment has merit, and therefore will be pursued by the agency and/or private Plaintiffs’ attorneys.

The Proposed Enforcement Guidelines make it clear that employers have a duty to maintain a working environment free of harassment and to take active steps to “minimize obvious risks of harassment.” The document also states (on pages 44-45) that failure to take advantage of preventative or corrective measures will result in the loss of a key affirmative defense to a hostile environment harassment claim.

If all of the above sounds scary, it should. The Proposed Enforcement Guidelines are a companion piece to a report released last summer by the EEOC’s Task Force Study of Harassment in the Workplace, which found that the Agency had a growing need for harassment prevention due to increased litigation and incidence of harassment even after years of focus on this particular form of workplace misconduct. The proposed guidance takes the Task Force’s findings one step further and gives the Agency’s investigators and prosecutors a road map for finding causation and liability on behalf of the countless employers who fail to take adequate steps to prevent harassment in the workplace.

Proposed Guidelines Provide Insight Into what Constitutes Effective EEO Compliance Training

Pages 73- 75 of the Proposed Guidelines provide some invaluable insight into what the EEOC considers effective anti-harassment training. Although not required by federal law (but required by state laws in California, Maine and Connecticut), the EEOC states “Regular, interactive, comprehensive training of all employees will ensure that the workforce understands organizational rules, policies, procedures, and expectations, as well as the consequences of misconduct.” This strong language validates what savvy compliance and HR departments already know: regular and routine harassment training is essential to the defense of charges of workplace harassment

The Proposed Guidelines emphasize the necessity of regular, interactive harassment training. If your business is not conducting harassment prevention training you need to worry, as the EEOC is about to begin seeking out companies who are not conducting training and not only attacking their defense to harassment charges, but likely auditing them for non-compliance with the Agency’s stated policy that employers need to take affirmative steps to prevent harassment in the workplace.

EEOC Outlines Components of an Effective Harassment Training Program

The Proposed Guidelines do employers the small favor of identifying what effective harassment training looks like, explaining that where live training is not practical, the training provided should be:

  • Championed by senior leaders;
  • Repeated and reinforced regularly;
  • Provided at every level and location of the organization;
  • Provided in all llanguages commonly used by employees;
  • Tailored to the specific workplace and workforce;
  • Designed to include active engagement by participants; and
  • Routinely evaluated by participants and revised as necessary.

Further, the EEOC explains several key facets of effective harassment training, stating that the most effective training contains the following elements:

  • Descriptions of unlawful harassment and conduct that, if left unchecked, might rise to the level of unlawful harassment;
  • Examples that are tailored to the specific workplace and workforce;
  • Information about employees’ rights and responsibilities if they experience, observe, or otherwise become aware of conduct that they believe may be prohibited;
  • Explanations of the complaint process; and
  • Explanations of the range of possible consequences for engaging in prohibited conduct.

Finally, the EEOC provides information about effective supervisor training, including risk factors for harassment and observation and leadership tactics that will help managers identify areas and individuals who may be at risk for victimization and/or harassing behavior in the workplace.

Syntrio’s Training Program Has Your Company Ready

The aforementioned EEOC guidance may seem daunting, but you need not worry, as Syntrio’s comprehensive workplace harassment training courses for managers and employees have covered the aforementioned points of emphasis for years, and are routinely updated to keep up with all changes in law, regulation and administrative policy. Furthermore, our courseware is fully interactive and customizable to the needs of your organization.

Make no mistake, the EEOC has identified training as fundamental to the avoidance of incidents of harassment in the workplace and is now quite clear about its enforcement guidelines on the subject. For years employers have struggled with identifying just what level of training is necessary to bolster a defense to charges of workplace harassment. Thankfully, the EEOC has provided new guidance that will help you understand just how serious a need harassment training is for companies of all sizes. The mantra that “training is not required by the law in my state” simply no longer fits. 

Syntrio is a leader in the ethics and compliance field, as well as human resources and employment law, and is prepared to help your company implement a compliance program aimed at reducing the potential impact of conflicts of interest within the organization. Syntrio takes an innovative philosophy towards compliance program design and strives to engineer engaging, entertaining, and thought-provoking content. Contact www.syntrio.com for more information about our conflicts of interest and code of conduct online courses and remember to follow us on Facebook, TwitterGoogle Plus and LinkedIn for daily updates on corporate compliance that impact your company!

 

Written by Jonathan Gonzalez, Esq., Chief Counsel for Syntrio.

Employers Beware: New EEOC Flyer Targets Younger Employees

On July 22, 2016, the EEOC released a one-page information sheet that explains how religious discrimination impacts employee job rights. The flyer explains that it is illegal for employers to treat their employees differently or harass them based on religious practices or beliefs. Sounds informative, until you dig a bit deeper into the sheet and learn a bit about the historical context at work here.

In the past 20 years the number of religious discrimination charges filed with the EEOC has more than doubled, from 1,709 in 1997 to 3,502 in 2015, but those numbers do not tell the whole story, as there are a number of factors at work leading to that increase. When we examine the picture within the picture, the number of charges spiked dramatically in fiscal 2008-2013, going from 2,880 charges in 2007 to 3,273 in 2008 all the way to 4,151 in 2011 before gradually declining from 2012-2015. Not surprisingly, the spike in charges in the years following the Great Recession coincides with an extreme risk of layoff for EEOC investigatory agents. 

While the EEOC is charged with investigating and conciliating charges of discrimination in the United States, they are anything but a friend of employers, and have long been known to seek “target rich” sectors within the workforce. With 2016 being an election year, the new flier unabashedly seeks younger employees as Plaintiffs to keep the agents employed in a new administration. The flier is not ironic in its attempt to target younger workers, as shown in the paragraphs below.

First, the flyer itself is entitled “Youthwork,” and the title is spelled out in a kitschy “Comic Sans” font. Next, the three examples of employees subject to alleged discrimination are a) a barista on summer break; b) an “after school” grocery store cashier; and c) a student working in a clothing store. The examples themselves involve situations that are likely to come up among younger employees, and further channel activism and millennial angst and hostility towards authority. In any event, the flier unfairly singles out millennials as somehow more likely to be victims of religious discrimination when they are, if anything, more likely to be the targets of a form of [legal] age discrimination

Employers need to be aware of the EEOC’s campaign seeking younger employees as complainants of race discrimination. In order to combat this effort it is more critical than ever to include younger employees in compliance efforts to show them that your company is committed to a diverse and inclusive workforce, and that religious discrimination of any form absolutely will not be tolerated under any circumstances. This way, if and when the EEOC comes knocking on your company’s door your employees will let them know that they work in an environment of tolerance, and where a culture of compliance is fostered.

Syntrio’s Compliance Continuum is an innovative means of getting your corporate message of compliance across. We believe that the best way to connect with employees of all ages, whose attention spans are getting shorter is to keep them engaged and ensure the message gets across. We offer a vast array of short-form videos preparing the user for our entertaining, engaging and interactive training courses and keep the content fresh and custom to the needs of your business. With the EEOC seeking a new batch of Plaintiffs during a tumultuous period in American History, now is the time to keep your users informed and aware that religious discrimination will not be tolerated at your company.

Syntrio is committed to helping businesses avoid costly incidents associated with employment discrimination. We are also able to custom-tailor our courses to fit the needs of your business. Contact www.syntrio.com for more information about our Preventing Religious Discrimination online courses for employees and management and remember to follow us on Twitter, Google Plus and LinkedIn for daily updates on compliance that impact your company