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New EEOC Commentary on Workplace Harassment

Last week, the EEOC released its latest edition of its federal sector Digest of Equal Opportunity Law, a quarterly publication featuring recent Commission decisions and federal court cases selected by EEOC’s Office of Federal Operations. This edition features an article titled, “Promising Practices for Preventing Harassment,” which is the fruition of an EEOC task force on workplace harassment. The article, which is particularly timely given the #MeToo movement, advances five core principles to deter and remedy harassment: (1) committed and engaged leadership; (2) consistent and demonstrated accountability; (3) strong and comprehensive harassment policies; (4) trusted and accessible complaint procedures; and (5) regular, interactive training tailored to the audience and the organization.

The utility of this article is not the simple identification of these principles, which are familiar and uncontroversial, but rather its identification of practices/strategies an employer can implement to achieve these aims. These recommendations include:

  • Regularly and effectively train supervisors and managers about how to prevent, recognize and objectionable conduct that, if left unchecked, may rise to the level of prohibited harassment.

  • Direct staff to periodically, and in different ways, test the complaint system to determine if complaints are received and addressed promptly and appropriately.

  • Create a harassment complaint system with multiple avenues of complaint.

  • Conduct live, interactive harassment training on a regular basis.

Helpfully, the articles also enumerates specific statements that should be included in a harassment policy, including but not limited to, that:

  • The policy applies to employees at every level of the organization, as well as to applicants, clients, customers, and other relevant individuals;

  • Harassment based on, at a minimum, any legally protected characteristic is prohibited;

  • Employees are encouraged to report conduct that they believe may be prohibited harassment (or that, if left unchecked, may rise to the level of prohibited harassment), even if they are not sure that the conduct violates the policy;

  • The employer will provide a prompt, impartial, and thorough investigation;

  • The identity of individuals who report harassment, alleged victims, witnesses, and alleged harassers will be kept confidential to the extent possible and permitted by law, consistent with a thorough and impartial investigation;

  • The organization will take immediate and proportionate corrective action if it determines that harassment has occurred; and

  • Retaliation is prohibited, and that individuals who report harassing conduct, participate in investigations, or take any other actions protected under federal employment discrimination laws will not be subjected to retaliation.

As the article acknowledges, these practices are not legal requirements under federal employment discrimination laws. However, employers should take note of these recommendations as they may enhance employers’ compliance efforts in both the short- and long-term.

©2019 Epstein Becker & Green, P.C. All rights reserved.

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About this Author

Carly Baratt, Epstein Becker Law Firm, New York, Health Care, Labor and Employment Litigation Attorney
Associate

Carly Baratt is an Associate in the Employment, Labor & Workforce Management and Litigation & Business Disputes practices, in the New York office of Epstein Becker Green.

Ms. Baratt:

  • Represents clients in employment-related litigation on a broad array of matters, including claims of discrimination, harassment, retaliation, wrongful termination, and breach of employment contract

  • Counsels clients in...

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