EEOC Releases Proposed Workplace Harassment Guidelines
The EEOC recently released its Proposed Enforcement Guidance on Unlawful Harassment. This 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, Twitter, Google Plus and LinkedIn for daily updates on corporate compliance that impact your company!
Written by Jonathan Gonzalez, Esq., Chief Counsel for Syntrio.
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