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EEOC Issues Tough New Harassment Guidelines

The controversial nature of the new guidelines is demonstrated by its close 3-2 vote of the EEOC Commissioners, and some of the interpretations seem to stretch current case law. Other provisions provide specific guidance to employers of a helpful nature on setting up a program to meet minimum legal requirements, such as the policy and complaint procedure requirements, training, and others. Paul Oliver and Sheri Oluyemi conduct this webinar for the firm, which included the following issues:

  • The minimum requirements of an effective harassment policy, complaint procedure, and necessary training;
  • What evolving types of harassment are covered in the new guidance;
  • In what ways does the guidance expand the current harassment rules; and
  • What actions should employers take now in light of the guidance?

Watch This Webinar

Harassment Training Services

As mentioned in the webinar, Wimberly Lawson does provide harassment training services. Use the form below to contact us about your needs and how we can serve your organization.

Webinar Transcript

Sheri Oluyemi (00:00):
All right. Good afternoon everyone. Thank you for joining us. My name is Sheri Oluyemi. I'm an employment lawyer here at Wimberley, Lawson, Steckel Schneider, and Stine, and I'm joined by,

Paul Oliver (00:14):
My name is Paul Oliver. I'm a principal here at Wimberley Lawson, Steckel Schneider, and

Sheri Oluyemi (00:20):
Stine. And stop. And, and we are here this afternoon to present on the topic, the EEOC issues, tough new guidance on harassment. We are going to discuss this newest guidance issued by the EEOC. So, as I said this afternoon, we'll be covering the EEOC'S new guidance. I'll begin by discussing the background. Basically, how did we get to this point? We'll talk about the EEOCs role, and then we'll move on to the new harassment guide in and of itself. So, let's talk about the EEOCs role. And many of you may already be aware. The Equal Employment Opportunity Commission serves as a gatekeeper for several statutes that have to do with employment. So this will cover Title vii, the Americans with disabilities Act, the Age Discrimination in America Act and also Gina. So it handles protected categories including race, gender national origin, color genetic information, as well as others.

Sheri Oluyemi (01:24):
So, in order for a plaintiff or an employee to bring a claim, it must go through the EEOC to address some of these protected categories that I've just listed, and that's what we call is a term of art, exhausting the administrative remedies. DEOC also serves as an enforcer because it can bring lawsuits against employers who are in violation of any of these statutes as part of its services. It also offers mediation, which some of you may be aware of, and have participated in a free of charge to the charging party. And the respondents, which is the employer. It also provides investigative services. Once it accepts a charge, it will deploy an investigator to look into the issues, sometimes take statements, sometimes speak with witnesses, and determine whether or not there is a cause or no cause. Finding then it serves as an educator, and this is really the part of its function that we're going to talk about today. It issues guidance for employers and employees on how to comply with these statutes in the workplace. Over the past decades, it has released guidance on harassment for several years now, as you can see on the slide, most recently in 1999 I'll admit, some of these are much older than my time, but these are the guidance that we've been working under until we find ourselves in 2023. And the EEOC has now issued a new harassment guidance that will override the others. And Paul will speak to that.

Paul Oliver (03:12):
Well, there is a, a short history of guidance over the last 20 years. As you can see, because there's not been any since 1999, there have not been any guidance between 1999 and 2023. There have been substantial changes in the Decisional law regarding that harassment. And this is an attempt by the EEOC to speak out authoritatively on what those changes are and what you can anticipate in the workplace with respect to legal enforcement of harassment. And given the fact that there has not been a guidance for such a long period, you would think that it would be very comprehensive. And it is, in fact, it's about a hundred pages in which the EOC lays out its position with respect to, in dis harassment in the workplace. And it updates the law with respect to it and sets forth its position with respect to how it will enforce those laws and interpret those laws.

Paul Oliver (04:31):
And that's important because, as Sheri has already indicated, the the EEOC is an important cog in the enforcement of our EEOC laws. The process itself shows a little bit about how controversial what has actually provided in these in this guidance. It was passed by the five commissioners, three to two. That means there are two of them who felt like it it, that it was not what they wanted it to be. And they have a 30 day period. They sent out this guidance to get comments. And there was a 30 day period that ended November 1st for people to comment on it for EEOC's consideration, because they were gonna take in consideration these comments and then vote on it again. And if they voted on it, it becomes the guidance for the EEOC. Okay. I understand Sheri, that the, that they got quite a number of comments.

Sheri Oluyemi (05:45):
Comments, yes. 37,000 comments were submitted on this guidance during that 30 day public comment period.

Paul Oliver (05:57):
In addition to trying to give a guidance as to what the law is it, this, it goes further to explain what it, it thinks the employer should do and make circumstances. Now, the guidance itself is not law, as you can see up here. It, it is a position of the EEOC in the guidance itself. It says the contents of this document do not have the force and effective law, and it does not, and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or commission policy. Alright? This is a, a a a a, A way for the EOC. Say, well, this is not the law, but this is the way we're going to enforce the law. So, for the purposes of the EOC, this is their Bible that they're going to use to to apply, and they want you to see it and to know it, so you'll know what's coming with respect to it.

Paul Oliver (07:10):
As Sheri said, the the guidance covers all bases. That is all the, the, all of the EEOC harassment provisions that are under its ages. And she's named some age, race, disability, genetic information. All of those things are under this within the, the, the coverage of this discussion. And they go through what is a very systematic discussion of how and what they will use to to evaluate harassment in the employment area. They also discuss systemic harassment. And again, this is one of the the areas that they go into that's is, is a little bit broader than what we, we would normally see the EOC go after. It is for example they have o section on systemic harassment. And they say like other forms of discrimination, harassment can be system systemic, subjecting multiple individuals to a similar form of discrimination. And that if harassment is systemic, then the harassment conduct could subject all the employees of a protected group to the same circumstance.

Paul Oliver (09:01):
This is a broad concept to me, for example, that if, that they discuss in here how discrimination can be system, systematic, systemic, such that the employer should be very cognizant of not just individual aspects of individual claims, but just make sure that they are vigilant to see sy claims that continue to recur or happen at more times. So you can't just investigate a claim, but you've gotta make sure that the claim is not suggesting that there is systemic harassment. For example, if if you have a department in which one employee makes a com a complaint, and then another employee makes one a month later, and then another, and it's a comp and it's apartment of say, 50 people, you have to be careful at this point because you're being put on notice that it's more than just an individual thing. So you have to investigate it as not only an individual claim, but as a systemic claim. Now, this is, this is a method that they are going to use to look at these things and to evaluate your claims, and they're saying that's what they want you to do as well. This is somewhat new in the system.

Sheri Oluyemi (10:31):
It is, I believe the EOC may have been doing this on the backend where they received charges over and over from the same company, from the same department within the same company, right? They may have been looking at it as systemic harassment, but now they're putting that in guidance, which wasn't their previously to put the employer on notice that this is something that they look for. There are other additional cover additional bases that are covered in the new guidance, which Paul will also go over. Would you like me to populate the whole slide?

Paul Oliver (11:08):
Probably. Thank you. As I said, the guidance is, is, is covering a long period of time from 1999 until 2023. And therefore, there have been many, many changes in the law with respect to to that. And in addition to the changes in the law, they are also stating a very aggressive enforcement of harassment in the, in the workplace. Now, one of the, the, the significant changes over that period of time dealt with an expansion in what people have considered to be sexual dis discrimination or sexual harassment. Most of us grew up during the time when sexual men, men and women. And so that the only discrimination that we were talking about, essentially was that between the company discriminating against a woman, for example, because she's a woman, and that would be sexual or gender discrimination. In 2020, there was a significant case that's called I think it was just Clayton County versus Bostock Supreme Court case, which changed that. Now, there had been rumblings before that it might be broader than just sex, but this was a Supreme Court case in 2020 that specifically determined that that was the case. And in case you guys are not familiar with it, it involved, it was, it was not a harassment case, it was a discrimination case, it was a termination case, and it actually involved two situations.

Paul Oliver (13:09):
One was Clayton County. They had fired this guy named Bostic for conduct, unbecoming a county employee employee. Shortly after he began participating in a gay recreational softball league, and they fired the, the allegation was that they fired him because of that. The other case that was held, her held heard at the same time the company had fired the employee who, who presented as a male when he was, when she was hired, and she informed her employer that she planned to live and work full-time as a woman. And she was fired because of that situation. So this was an expansion of the definition of sexual discrimination. But this, what they go forward in the guidance is to say that if sex means and or includes sexual orientation and gender identity, then sexual harassment also includes sex. So, harassment based on sexual orientation and gender, gender identity are covered and are issues that you have to deal with under the with the EOC.

Paul Oliver (14:38):
Now, the pregnancy childbirth adoption and abortion issues have been in the law as a violation of title title vii. I think it was added in like 19 80, 79 or 80 where you could not discriminate because of pregnancy. In fact, it said that in, in nine, it says that because the terms, because of sex in Title VII or on the basis of sex include, but are not limited to because of, or in the, or on the basis of pregnancy, childbirth, or related medical conditions. And women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment related purposes. So that's in the statute. That's, again, that is a discrimination. But what the EOC is saying is, okay, if it's a violation of the law to discriminate against because of this, if they are harassed because of these bruises, then we're also gonna enforce that. So so there had not, while that had been in the law in terms of going after just harassment because of those things has not been relevant. They also emphasized in this guidance that stereotypes of protective groups is also covered and that are things that they will be enforcing. Now, that means if the, if for example, if sexual orientation and gender identity is a, is a protected group, if they are being stereotyped just as blacks or women have been stereotyped before, these are all going to be considered to be issues of harassment that the EOC will enforce

Paul Oliver (16:52):
Harra. The other area where they have indicated they're going to be putting their emphasis is on harassment in virtual and online spaces. Alright?

Paul Oliver (17:09):
Again, the workplace in the last few years has expanded. Before covid most of us thought exclusively, or pretty much as, as it being working in your office. And there are some of us from time to time who work from home, but the Covid experience changed things. And now there are many companies that work substantially virtually and not in place. And what the EOC is saying is, we are going to apply these same harassment rules, whether it's virtual and online, or whether you are actually there at work. These are still workplaces. They are still work issues, and we are go, and if their harassment is done virtually, it is the same as being done in the workplace, and they're gonna apply the same rules and procedures to that. And again, the systemic harassment, I've, I've spoken to briefly regarding that. And I think that those are, these are primarily the changes. The biggest change, again, is in the, the sexual orientation and gender identity, or the broadening of the idea that they are going to apply sexual harassment or harassment to more things in the workplace than just sex as well.

Sheri Oluyemi (18:44):
And for our next segment, we're gonna take you through some details of this new harassment guidance that are not necessarily brand new. They're not new aspects of the law. They're not as a result of any new case law, but they're just new perspectives that the EOC is taking on several issues that some of them shocked us, some surprised us as defense counsel, and we feel that these are things we should bring to your attention in the workplace. So we're calling this Forget what you thought you knew. Not everything you thought you knew, but some aspects, I believe some of us have just learned out of just plain old doing it over and over again. We may have become complacent. We may have just learned it the the wrong way and have carried that forward in our, in our practice on a day-to-day. So we wanted to point out some of these hot button topics and hot button aspects of the guidance. And of course, there, there are many more in there. But these are the ones that we wanted to highlight for your attention in the short time that we have. Paul, do you wanna kick us

Paul Oliver (19:55):
Off? Yeah. the first one, it says that no magic number of incidents to meet the minimal threshold. There is a specific section in this guidance that's called hostile envir work environment based on a single incident of harassment. And they specifically provide that in limited circumstances, not all, a single incident of harassment can result in a hostile work environment. And they gave it, they give examples of conduct that courts have found sufficiently severe to establish a hostile work environment based on a single incident. And this, this is their list. And there's a there are five things that they have listed. Sexual assault, so sexual assault in the workplace, one incident of it. They can be evidence of a harassment in the workplace, sexual touching of an intimate body part, physical violence or the threat of physical violence, the use of symbols of violence or hatred toward individuals sharing the same protected characteristic such as a swastika, an image of klansmen's hood or a noose.

Paul Oliver (21:20):
The use of animal imagery that denigrates individuals sharing a protected characteristic, such as comparing the employee to a monkey ape or other animal. I'm sorry. There are two others. The threat to deny job benefits for rejecting sexual advances. Now, this is also, this is a, a significant one because that happens quite a lot in the in the workplace. And they're saying that it's a single incident where there's that threat to deny job benefits for rejecting sexual advances would be considered enough, and it has been, and in the right circumstances, the use of the inward by a supervisor in the presence of a black subordinate. So these are overt acts that objectively indicate a treatment different to an employee because of his protected characteristic. And in certain circumstances, they want you to know that they will look at single incidents sometime to indicate that there is a harassment problem in your workplace.

Sheri Oluyemi (22:37):
Next one. On our list, it says, harassing conduct does not have to be directed at the complainant. And this one just speaks to the fact that if an employee in the workplace is not the, the recipient of any harassing comments or conduct, they can still complain and still have a valid claim of harassment against the company. For instance, if a woman is over there doing her work on the side and on the other side of the plant some men are harassing another woman just by virtue of that other woman being present. And having heard that, or having heard about that, even if she was not present, she can't complain about harassment, and the company would not be safe to simply state they were not talking to you, or they were not referring to you, or they were not objectifying your body. You were not even in the workplace that day.

Sheri Oluyemi (23:30):
You know, you heard about this from a third party. None of that would be a sufficient defense for the employer, even though that woman is was not the recipient, she could still complain because she is part of that protected category and had witnessed it being directed at someone else in the same group. She can't have a valid claim of harassment. So if you ever received those types of third party complaints, no matter the, the protected category, do not dismiss them outright as being unsubstantiated because that individual did not directly hear the harassing comments or did not directly receive the harassing conduct.

Paul Oliver (24:13):
Again, this principle is, is akin an outflow of their intention to, to widen the systemic discrimination requirement in the workplace that as employers have to be not only vigilant at individual claims, but make sure that any individual claim or claim that gives you notice of a claim is a a is acted upon because you'll be held liable for it if in fact there is that harassment. Mm-Hmm. <affirmative>,

Sheri Oluyemi (24:52):
I can take this one on. Timely complaints become timely when related to timely complaints. What advice can we give on this one? Well,

Paul Oliver (25:01):
I, I think that many of us, you know have always assumed that if an employee has a claim, they need to make it timely. Mm-Hmm, <affirmative>. And that if it's if it's not done within a reasonable quick period of time, after it is, it is happens, then we don't want to give it much credence. But I think what the EEOC is saying is that there can be many reasons why untimely complaints can become com timely when related to timely complaints. For example, if an employee was discriminated in one department and and for one reason or another, did not complain, but then got transferred to another department and was also discri harassed for the same reason that's related, and the employee then brings that claim and says, well, not only do it here, but you get it there.

Paul Oliver (26:12):
The EOC says, well, no, we'll look at that related claim because it is being given credence by the fact that it has happened twice, and it's reinforced. And if it's related to the second one, that is timely, we'll let him go back to the first one. Okay? So, again, this is a liberal philosophy that the EOC is espousing that may or may not be accepted by the courts, but it is how they will re review, review these particular types of, of complaints. And that is somewhat a recognition also, that there are many instances that in the employment situation where an employee may not make a timely complaint, and again, it could be based on the fact that that employee has made a complaint before and nothing happened. The employee has seen another employee make a similar complaint and nothing happened. Or if the, if the person who didn't, who, who didn't make the complaint, didn't make it because the person who they were complaining about was the best friend of the, of the person they were complaint, they were gonna make the complaint to they will take all those things into consideration and say that those untimely complaints, if they are relevant and still happening, they won't still be considered by the EOC.

Sheri Oluyemi (27:45):
So don't dismiss them outright if you get wind of something that seems a little stale, but if it happened again, you should take it seriously. Next one on our list here. Paul has already touched on which states conduct outside an employee's regular workplace can constitute workplace harassment. This one's a little difficult for the employer because it's difficult to police an environment that is not within your workplace. But what the EOC is saying in this guidance is that even though the conduct occurs elsewhere, the employer can't still be liable. There are various ways that the employer is being tied to this incident. Of course, the relationship between the two employees may have began in the workplace, so in the physical mortar and, and in the physical building of the employer. So that relationship may have started there. And as such, when the harassing conduct moves elsewhere, the EEOC is gonna use that to hold the employer liable.

Sheri Oluyemi (28:43):
Another way that the employer can be brought into an outside of the workplace incident is if the employer's devices or communication systems are being used. So, think of your teams, your WebEx, your Zoom calls. Think of your devices that you've issued to your employees. Think of your Slack chat. Think of any means of communication that you've provided to the employees to communicate with each other. If the harassing conduct happens in those means, or through, through that media, then the employer can be liable because it is essentially still providing the virtual venue in which the harassment took place. So again, if you received the type, these types of complaints, you know, it happened over WebEx and it was outside of work, outside of work hours, do not dismiss it outright based on the EOCs interpretation of title seven and the related statutes. They will still consider it as being workplace harassment. And this relates to our, our next bullet point here.

Paul Oliver (29:50):
And again, just reinforcing this this, the quality of the or the extension of the workplace to, in the in the area of, in the era of Zoom it is significant. And I I, I know that most of us have many, often, many, many Zoom calls that involve our employment on a daily basis, whether they're in the office or home or whatever. Whether we're working from home or whether we anywhere, and we take the zoom call and it is related to work then that's gonna be considered part of your workplace. The next one is very related. The issue of communications using private phones. So even if the employee is using private phones, own computer in hiss own social media account, if he or she is using it to harass the employee and employee that, and, and, and therefore it relates to the workplace, even if it is not a sanctioned Zoom hearing, it is a even they're using their private social media accounts.

Paul Oliver (31:05):
But if they are involving an employee in a harassment situation that relates to the workplace, that relates to the workplace and it impacts the workplace, then you have a duty to deal do about it. Because the EEOC is gonna consider that, again, a part of that expanded workplace that we're talking about. In this era of communications being so widespread and so easily used even on a private basis where that private basis impinges on the workplace and impacts the workplace and impacts the employee with who is doing or trying to do a job in the workplace. If that communication impacts the workplace, you're going to have a duty under the EEO e EOCs analysis to do something about it. Okay.

Sheri Oluyemi (32:07):
All right. Our next bullet says, not every harassment policy and procedure is a defense. Some of you may already be familiar with the farrier er defense, which states that when there's a issue of harassment in the workplace, the employer can defend itself by stating that first, it took reasonable measures to prevent the harassment, and one of the primary reasonable measures to prevent the harassment would've been a harassment policy or procedure. The second aspect of the defense states that the employee failed to avail themselves of those available means to prevent the harassment. So for that first prong of the defense, the employer needs to show that they have a policy and procedure in place that will prevent the harassment. So the EOC is just pointing out that not every policy and procedure that you slap together, you download from rocket lawyer, no digs at rocket lawyer means that you're going to have a solid defense. Instead. The EOC has presented a list of different aspects that your policy and procedure should have in order for it to be a defense. And I, I won't read the entire list here. There, there are very many aspects. Paul, I think you wanted to talk to a few of those, a few of those aspects of an an effective policy and procedure.

Paul Oliver (33:32):
I will but I wanted to incorporate the the next one into the last one about not every anti harassment policy and procedure is a defense, for example. Almost all of the policies and procedures that are out there provide that, that, that the employee who is harassed must report the harassment to a particular person or group of person or people. And that, and then the, the idea is that if that person then reports it to management and something is done, then you'll have a good defense. What they have done is they have taken that and said, well, we're gonna blow that up a little bit. Mm-Hmm, <affirmative>, all right. This is their notice, and I'm reading directly from their guidance, and it says, an employer has notice of harassment. If an individual responsible for reporting or taking corrective action with respect to the harassment is aware of it, or if such an individual reasonably should have known about the harassment.

Paul Oliver (34:51):
In other words, they have, normally, we have taken the position that the company didn't really know about it until the, the employee reported it. Mm-Hmm. And they reported it to a responsible reporting person, and then the company would have a responsibility to do it. And without that, we don't do anything. All right? What they're saying is, no, that's not good enough. Even if the other person doesn't report it, if the person that you have designated as one of the people to receive this information knows of it, or should have known of it, you can be lied.

Paul Oliver (35:31):
Now, that is an expansion way beyond what most of us are aware of, of what the law actually is now, but that is what the EOC wants the law to be. And a and, and in their guidance that they have set out, that's what they want to be able to enforce. That is they create a responsibility on the super, on the company to designate somebody to report to. But if that per, even if the, of the, the discrimination or harassment is not reported to 'em, if they know about it or should know about it, that's even tremendously broader. The company could be held out. Now, that's a significant jump in what the, what was anticipated by employers and which may now have to be anticipated by employers. If this guidance is accepted, which I expect it will be. Now, they also say, what's the corrective action then for that? It says, once an employer has actual or constructive notice, now that constructive notice means that's when the supervisor didn't know, but should have known. Now, that's constructive, right? Of potential harassment. It is required to take reasonable corrective action to prevent the conduct from continuing.

Paul Oliver (37:04):
Now that is significant. Now they tell you what the corrective action is, and they tell you what the notice is. And so how are you supposed to deal with that? That's a significant issue of how do you deal with that? You can, it's very hard to change your policies and procedures to do it. I mean, you're gonna take, who are you gonna put the report in? I think the only effective way that you could possibly try to, to, to try to do it is through more regular training training to employers, employees know, and employer and supervisors know of this significant responsibility for all of them to report harassment and to report it, not only when it's reported to them, but whenever they see it. And that there's also and for supervisors an active responsibility under this provision to look for it and be aware of it. Right? So this is, this is a big change. This is a big change.

Sheri Oluyemi (38:18):
I think we'll move now to our final two points before we turn it over to you for questions. And this one states that if the investigation, even if the investigation is inconclusive, take preventative measures. And this speaks to the fact that a lot of us, when we conduct an investigation into harassment allegations, and it's either unsubstantiated or inconclusive, we simply close our file. What the EEOC is asking for, is it, if you get to that point, you should still take preventative measures. In other words, in order for that report to have come to you or for your supervisor to have recognized something going on on the floor, there may have been some there, there, and it may have fallen just short of a full harassment claim. Therefore, don't ignore it. Take preventative measures to make sure that the next time that incident comes up, it doesn't become this entirely blown out of control situations.

Sheri Oluyemi (39:16):
And I would, I would back up what Paul has said, that some of the preventative measures you can take in that instance is training. Think of it as an OSHA case where there is a near miss. You would always investigate a near miss. You would always offer more training so that the next time that incident happens, it doesn't become, you know, reportable or reportable. So in the same case, when you're dealing with a harassment matter, even if it's inconclusive, even if it's unsubstantiated, take preventative measures, which we believe would be more training for your employees and, and for your first line supervisors who are really your eyes and ears on the floor. Paul, would you like to do the honors of the last one?

Paul Oliver (40:01):
I, I would just like to speak one, one thing about the investigation. The EEOC puts a lot of emphasis on investigations and on an appropriate investigation and appropriate corrective action based on your investigation. The type of investigation you do is should be based on the facts and circumstances of with respect to each claim. It could be done by somebody in the office, it could be done by hr, but in many sensitive situations, you may need to go beyond that, particularly if it involves an employ a, a supervisor or manager in terms of whether the claims are being made that you want to make sure that it is, it is done in a a neutral fashion so that the results can be believed. So having and determining the appropriate nature of the kind of investigation do is very, very important.

Paul Oliver (41:12):
Once that is done and that investigation is done, then sometimes the investigator will determine the, the facts substantiate the fact that there was discrimination or that there wasn't, or that whatever happened. But many times it's, it's not as clear cut as that. For example, you may have a he said, she said, he said, she said situation. And the investigator, no matter how neutral, says, I just don't know one way or another, one way or another, what, what the situation is. So what do you do? You just say, well, don't worry about it. So, no, I think what happens is that you still gotta look at it and determine whether or not this incident and the fact that a claim was made is such that you can either do more training or or take action to make sure that the situation is diffused, even if it, if it's appropriate, or if it's a situation where that can be done, where that be alleged discrimination cannot continue. You cannot always do that when it's inconclusive. But you've gotta look at that, and you've gotta do something to show that you are looking not only at this situation, but also the systemic part of it. There are always in other words, there is this almost added burden on you for each claim to make sure that there's not something behind it. And it does not suggest that there's something else out there other than what what you see in, in connection again.

Sheri Oluyemi (43:04):

Sheri Oluyemi (43:07):
So our final point, employer can be liable if the employee takes other reasonable steps rather than using the employer's complaint process. And this goes back to what I spoke to just a few moments ago about the affirmative defense. The employer does have a defense if it has a policy and procedure, and the employee fails to avail themselves of that process. Again, the EEOC is expanding the rules here. When it says that even if the employee did not follow your proce, your procedure to the letter, if they took other reasonable steps, then the employer would not be able to rely on that defense. Some of the reasonable steps that the employee may take instead of going through the complaint process is an alternate venue for reporting. Usually, you'll have in your policy report all incidents to your immediate supervisor. For whatever reason, the employee may determine that that's not the appropriate person to bring the incident to.

Sheri Oluyemi (44:06):
Perhaps they, they feel like that person is perpetrator or that person would defend the perpetrator, or they've had experience with that person retaliating against another employee who's made a complaint. Then that employee can skip a level and go to his supervisor's supervisor, or directly to HR and make that complaint. The employer would not be able to rely on the defense that the employee failed to follow the chain of command. As long as the alternate route the employee took was reasonable then the employer could still be liable. An employee may go to a hotline. If you subscribe to a compliance hotline service, they may want to call in anonymously, and that may not be the pro procedure that you prefer. A lot of harassment policies, and we advocate for this, will require the complainant to make a statement in writing. The employee may not do that. They may call the compliance hotline and just give a narrative over the telephone. You would not be able to rely on the fact that they didn't follow your policy to a t That would be an alternate and reasonable means of making a report. And as such, the employer would be still on notice.

Paul Oliver (45:16):
Thank you, Sheri. I think we've sort of over our time and, and we apologize if we are keeping you beyond this, but it is an interesting topic and one which I think all employers should be interested in and think seriously about how they're going to respond to it. Again, the guidance is not even a guidance yet. They're gonna vote on it. They're, they gotta go through 37,000 comments and fi vote on it again and decide whether they want it, but I suspect that it will be be accepted. 

Sheri Oluyemi (45:48):
So I have opened the q and a as well as the chat. Another thing that I'll do, we have a fairly big group today, but I still would love to invite you to speak up, ask your questions to the group. The question reads, any suggestions for good harassment training for supervision and management? I will make a shameless plug that we do offer training here at Wimberley Lawson, and any one of the attorneys on staff can attend at your workplace to provide that training. But aside from, for the shameless plug what do you think, Paul?

Paul Oliver (46:31):
I, I mean, there are, are, are, or a lot of companies out there who provide harassment training. I think it is good to get your has harassment training from from a law firm. And I think we do a good job of that and many others do as well. But if if you decide that you want some harassment training, particularly for supervision and management, which again, as I've have, we've emphasized here under the guidance, that will be probably one of the more important things that you would need to get done. But yeah, if you want a suggestion, we're raising our hand <laugh> <laugh>.

Sheri Oluyemi (47:13):
Yeah. And we, we are not endorsing any particular companies, but I guess Shem is popular share for, for, for training modules. Also if you have a large virtual work workforce, it might be helpful to get an online training service that your employees can complete at their own convenience that may increase your participation rate. If you, if you want to have that done virtually. And of course, once it becomes the official guidance, which as Paul says he believes it will be, we'll provide that update on our website. Oh, I see another question. And it says, what should be done if an employee posts harassing things on their personal social media and another employee takes notice and reports it to their employer? This is exactly a case factor that the EO C'S harassment guidance tries to answer. And I think the way, the way they would answer it in this guidance is to ask how it's impacting the workplace.

Sheri Oluyemi (48:16):
So this is a private social media account, but two employees who may have met each other at the workplace have engaged in some conduct that another employee takes and reports to the employer. You want to look into it. Unfortunately, I cannot, I cannot say that you, you don't, based on this guidance, the way they've expanded it, the, the EEOC would say, based on this guidance, that you should inquire as to whether it's impacting the workplace, whether it's it is affecting the receiving employee's ability to perform their job at the workplace. And if it does, then you may have to do something about it. Alright. What do you think, Paul? Well,

Paul Oliver (48:57):
I, I can't tell from your question. And the question is for other folks, I don't know if you can see it. What should be done if an employee posts harassing things on their social, their personal social media, and another employee takes notice and reports it to their employer? Now, again, your, your, your question does not say that the harassment relates to the workplace or, or has a connection to the workplace. So if it did, I assume you would tell me. So it, I assume that person has weird things on their social media and they harassing things. It doesn't sound like it's also harassing the employee who notices it. He notices that the harassment is going on, but it doesn't seem that it is directed at that employee. If it's just harassing things about people in general, or people who are not involved in the workplace or does not deal with the workplace, sit it's not connected to the workplace.

Paul Oliver (50:01):
You do not, in my view, have a duty to do anything to that employee. If they're posting it on their own personal social media and it is independent and it's about other things and other people, then and it doesn't affect the workplace, then I'm saying probably not. If in fact, the harassing things are about the employee who notices it and, and it re relates to the workplace, that is, it talks about things that relate to the workplace, then I think you have to treat it that report by that employee as a complaint and look into it. But if it's just like, oh, Joe's a weird dude and he's posting all kinds of crazy things on his social media,

Sheri Oluyemi (50:47):

Paul Oliver (50:48):
Different. That's different. Mm-Hmm, <affirmative>. Okay. And I can't tell from your question which one it's

Sheri Oluyemi (50:52):
Right. So I think our short answer is, is it impacting the workplace or, or is it not? Yeah, I guess you may have to ask that one question to find out if you need to do more. Correct. We have another question in the few minutes we have left. Do you recommend any changes to the anti-harassment policies based on these changes? And that answer typically like a lawyer? It depends.

Paul Oliver (51:14):
I think I, it does depend, but certainly I do think that there are if the guidance goes through, which I think it will, then I do because one of the things that the harassment policies usually do is they describe some of the things that can be harassment. I think that has to be broadened in this situation for sure. So that if you wanna make sure your policies cover these areas that the EOC is going to target, okay, so I know just off the top, I would say that is a change that would, would have to be made to most policies. 'cause They don't, they don't go that broadly. But I think that that is one of the things that I would, would recommend. There might be other changes relating to the supervisor thing. And I, and I'm not sure I've really thought through that, but that, but I do think that you should have you yourself review your policies to, in view of these things that we're saying that are in the guidance or have a lawyer do it to come up with some suggestions about changes. But I, I do think you can make it more effective if you take these things that we're talking about into consideration.

Sheri Oluyemi (52:30):
Correct. And you may already do a lot of the things that the EOC is recommending, but you may not. And so, like Paul said, you need to look at your, your policy. And if it's not as broad as the EOC is now taking this, this area of law, then you, you may need to broaden it. And like I said, the guidance does give a list of aspects that every policy must have to be effective, including things like definitions how widely the policy is disseminated, the training that's provided on it, the process for prompt, investi, prompt and effective investigations, confidentiality, anti-retaliation. Again, some of these you may already have, but some may not. So review your policy and see whether there are any areas that seem narrow that need to be broadened based on the topics we've, we've covered. And again, we're happy to help. Okay. I am not seeing any good questions. We thank you for joining us this rainy afternoon if you are in Atlanta. And if not, I hope you have be better weather wherever you are. Thank you very much for your attendance. Bye bye-Bye.

eeoc issues tough new harassment guidelines
Webinar Date: Friday, December 01, 2023
Start Time: 12:00 PM
End Time: 12:45 PM
Presenter(s): Paul Oliver & Sheri Oluyemi
paul oliver
Sheri Oluyemi
Status: Available On-Demand
Venue: Zoom

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