EEOC Issues Last Minute Omnibus Guidance Tracking Harassment Task Force?s Recommendations

With
a few work days left under the current administration, the Equal Employment Opportunity
Commission (“EEOC” or the “Commission”) has released new 75-page draft guidance on workplace harassment.  While the
EEOC’s timing will certainly raise eyebrows, employers should take notice.  The Commission describes its new guidance as
“a companion piece” to the Report
issued by EEOC Harassment Task Force Co-Chairs’ Victoria Lipnic and Chai
Feldblum this past June.  Since Commissioner
Lipnic is the only Republican on the EEOC and widely rumored to be its next Chair,
the proposed harassment guidance could very well survive the Presidential
transition.

EEOC
provides that the proposed Enforcement Guidance on Unlawful Harassment explains the
legal standards for unlawful harassment an employer liability, and provides “a
single legal analysis for harassment that applies the same legal principles
under all the statutes the Commission enforces.”  The proposed guidance consolidates and
replaces four separately issued harassment guidance: EEOC’s Compliance Manual
Policy Guidance on Issues of Sexual Harassment (1990) and on Employer Liability
for Sexual Favoritism (1990); and EEOC’s Enforcement Guidance on Harris v. Forklift Sys. Inc. (1994) and
on Vicarious Employer Liability for Unlawful Harassment by Supervisors (1990).

The
EEOC followed this same procedure when updating its Enforcement Guidance on Retaliation and
Related Issues
  and National Origin
Discrimination

last year.  Employers have 30 days to
review the draft guidance and submit comments.
Once the agency reviews the public comments and makes changes to the
draft guidance, the Commission must vote to approve the final guidance.

We anticipate that
the EEOC will move forward with the new harassment guidance.  Given the guidance’s length and timing we
encourage employers take the time to review the proposal and strongly consider
providing comments to the EEOC.  We will
be preparing a summary of the proposed guidance.  If you are interested in receiving our
summary and participating in FortneyScott’s comments, please contact your
FortneyScott attorney or Leslie Silverman.