EEOC – ScriptSourcing

EEOC Proposes New Workplace Anti-Harassment Guidance

The Equal Employment Opportunity Commission has issued proposed language to update its guidance on harassment in the workplace.

The proposed guidance “reflects notable changes in law, including the Supreme Court’s 2020 decision in Bostock vs. Clayton County (which held that LGBTQ individuals are protected from workplace discrimination under Title VII), the #MeToo movement and emerging issues, such as virtual or online harassment,” the EEOC wrote in its introduction to the proposed guidance.

The agency polices discrimination in American workplaces, and harassment falls under that banner. Between 2018 and 2022, 35% of the charges of employment discrimination filed included an allegation of harassment based on race, color, national origin, religion, sex (including pregnancy, sexual orientation and transgender status), age, disability or genetic information.

Employers should read the guidance to understand the many forms of harassment — and in particular harassment against any LGBTQ workers, since they are the most recent group to receive protected status.

LGBTQ harassment

The Bostock ruling found that harassment based on sexual orientation and gender identity, including how identity is expressed, constitutes sex-based discrimination. According to the EEOC, guidance this type of harassment can manifest in the workplace via:

Physical assault;
Epithets regarding sexual orientation or gender identity;
The denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity;
Intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (which is known as “misgendering”); or
Harassment because an individual does not present in a manner that would stereotypically be associated with that person’s gender.

The guidance provides examples that illustrate the many nuances of harassment.

In its guidance, the EEOC cites the following example of indirect LGBTQ harassment:

“Keith and his colleagues work in an open-cubicle style office environment, and they frequently make derogatory comments about gay men and lesbians.

“Horatio, who is gay, overhears the comments on a regular basis and is offended by them, even though they are not directed at him.

“Based on these facts, the conduct is facially discriminatory and subjects Horatio to harassment based on sexual orientation (which is a form of sex-based harassment), even though he was not specifically targeted by the comments.”

It also offered this example of harassment based on gender identity from a case in Philadelphia:

“Jennifer, a cashier at a fast food restaurant who identifies as female, alleges that supervisors, coworkers, and customers regularly and intentionally misgender her.

“One of her supervisors, Allison, frequently uses Jennifer’s prior male name, male pronouns, and “dude” when referring to Jennifer, despite Jennifer’s request for Allison to use her correct name and pronouns; other managers also intentionally refer to Jennifer as “he.”

“Coworkers have asked Jennifer questions about her sexual orientation … and asserted that she was not female. Customers also have intentionally misgendered Jennifer and made threatening statements to her, but her supervisors did not address the harassment and instead reassigned her to duties outside of the view of customers.

“Based on these facts, Jennifer has alleged harassment based on her gender identity.“

What you can do

The EEOC recommends that employers create an effective anti-harassment policy, which is widely disseminated, and that:

Defines what conduct is prohibited.
Requires that supervisors report harassment when they become aware of it.
Offers multiple reporting avenues for an employee, during both work hours and other times (weekends or evenings).
Identifies accessible points of contact to report harassment (complete with contact information).
Explains the employer’s complaint process, including the ability to bypass a supervisor, along with anti-retaliation and confidentiality protections.

For an employer’s complaint process to be effective, at a minimum, it should provide:

For prompt and effective investigations and corrective action;
Adequate confidentiality protections; and
Adequate anti-retaliation protections.

The final step in it all is training your employees and supervisors on your anti-discrimination and harassment policy. You can use the EEOC guidance to provide examples of harassment and provide information about your employees’ rights if they experience workplace harassment.

Supervisors and managers should receive additional training, including the importance of taking complaints seriously and not retaliating against anyone who makes a complaint.

EEOC Ramping Up Workplace Anti-Discrimination Efforts

Employers should brace for increased enforcement by the U.S. Equal Employment Opportunity Commission after it received a budget boost and has a new board member, breaking a deadlock that’s been going on for nearly a year.

Here’s the latest EEOC news that’s pointing to more robust enforcement by the agency:

In the federal government’s fiscal year that ended on Sept. 30, 143 lawsuits were filed against employers for alleged discrimination against employees, 52% more than in 2022. All but three of them were filed in the last eight months of the year, indicating a rapid increase that’s spilling over into the current fiscal year.
The EEOC’s budget for 2024 increased $26 million, or 6%, from 2023.
The composition of the five-member EEOC changed in July, when a new commission member was finally confirmed after a year-long wait, giving Democrat-appointed members a majority. The commission had been deadlocked up until that point with two Republican-appointed members and two Democrat appointments.

These developments indicate that the EEOC will step up its enforcement of federal employment laws. Accordingly, employers should be extra-vigilant in preventing acts or conditions in the workplace that might appear to break the law.

The EEOC is a federal agency charged with enforcing federal laws that prohibit discrimination against job applicants and employees on several grounds. These include race, sex, color, religion, age and disability, among others.

In recent years, the number of lawsuits it filed has shrunk. During some years of the Obama administration, it filed more than 300 suits annually. That number fell to 97 in 2020 and was 124 in 2021.

An EEOC investigation can have several effects on an employer:

Time that would have been spent running the business must be dedicated to responding to the charges. Work activities are disrupted as the EEOC requests documents and interviews staff members.
Employee morale can tumble when staff find out the government is investigating alleged discriminatory practices.
It can tie up the employer for a very long time. The EEOC says most investigations take 10 months or so, but experts say that is an underestimate.

How to prevent an EEOC investigation

The best thing an employer can do is to avoid giving workers any reason to believe they’ve been victims of discrimination. You can do this by:

Establishing a strong and clear written anti-discrimination policy. It should expressly state that discrimination against any of the protected classes of employees is illegal and intolerable. You should include it in your employee handbook and communicate it often to workers. A good policy will include easy to understand examples of prohibited conduct.
Establishing an anti-retaliation policy. It should make clear that employees who complain of illegal discrimination against themselves or colleagues will not be retaliated against. EEOC statistics showed that most of the complaints it received in 2020 were for retaliation.
Training managers and other employees on compliance with applicable laws.
Developing and following a consistent process for addressing complaints.
Promptly investigating all complaints of discrimination and taking actions, if necessary.
Thoroughly documenting all steps in the investigation and retaining the records for future reference.
Using progressive discipline with violators, with the severity of the consequences increasing for each subsequent violation.

Insurance

Every employer should carry employment practices liability insurance. This coverage protects the business against claims of discrimination, harassment, retaliation and other wrongful workplace acts.

However, there can be great differences between policies, so it’s important that you work with us to find a policy that is right for your organization.

The EEOC is clearly taking employee discrimination claims more seriously. That makes it all the more important that your organization does the same.

Retaliation Accounts for 35% of All EEOC Complaints

The Equal Employment Opportunity Commission is seeing a wave of retaliation complaints by employees. Retaliation charges accounted for more than 35% of all charges filed with the commission in fiscal year 2022.

Retaliation means any adverse action that you or someone who works for you takes against an employee because they complained about harassment or discrimination. Any negative action that would deter a reasonable worker in the same situation from making a complaint qualifies as retaliation.

Employees who participate in an investigation of any of these problems are also protected. For example, you cannot punish an employee for giving a statement to a government agency that is looking into a discrimination claim.

Employment law attorneys say that the increase is in part because employees who sue for retaliation have a higher degree of success than those who bring a regular discrimination charge. It’s important that all employers train their managers and supervisors to not retaliate against workers making complaints, as the result can be a costly lawsuit.

Thanks to a precedent-setting case, Burlington Northern & Santa Fe Railroad vs. White, while an employee alleging discrimination must prove that they suffered a “materially adverse employment action,” a retaliation plaintiff only needs to show that the employer undertook some action that may dissuade them from making or supporting a charge.

Employment law experts recommend that employers do the following:

Set clear and unambiguous policies

Your company policy should clearly state that retaliation is not permitted.
The policy should describe the parameters of inappropriate conduct as well as you can define them.
Put the policy in writing.
Set reporting and grievance procedures, including the person to whom the employee can report a retaliation complaint.
Have staff sign an acknowledgment of receipt of your policy.

Investigate complaints promptly

Remember that anyone who participates in an investigation is likely protected from retaliation (not just the employee who makes a complaint, but witnesses as well).
Communicate results of the investigation to the grievant.
Take effective remedial measures, including carefully reviewing all disciplinary measures before imposing them. You should also ensure that disciplinary actions are consistent with past practices.

Train managers and supervisors

Finally, you should train managers and supervisors and ensure they understand your policies.

Make sure they understand who is protected from retaliation (participants, complainants, and even persons related to the complainant in some cases).

They should also understand what constitutes retaliatory conduct and, if they are unsure, they should speak to your human resources manager.

EEOC Posts New Guidance on Visual Disabilities under the ADA

The Equal Employment Opportunity Commission has issued new guidance for employers to provide reasonable accommodations for visually impaired workers who request it.

About 18.4% of all American adults have at least some difficulty with their vision, even when wearing corrective lenses, according to the U.S. Centers for Disease Control and Prevention.

The new guidance addresses what employers who have a vision-impaired job applicant or worker can and can’t do under the Americans with Disabilities Act and what to do if they request, or if you want to offer them, specific accommodations to help them perform their jobs better and more safely (or help them complete the application process).

Under the ADA, if a worker with a disability asks for accommodation so they can better perform their job, their employer must enter into an interactive process with them to discuss ways that accommodation would be possible. You do not have to provide accommodation if doing so would be an “undue hardship.”

Here are the main points of the EEOC guidance:

Reasonable accommodation

The guidance lays out a number of accommodations that employers can provide for workers or job applicants with visual impairments, including:

Guide dogs,
Assistive technology, including:
- Screen readers (or text-to-speech software). These are software applications that can convert written text on a computer screen into spoken words or a Braille display. These tools can allow individuals to quickly review written text.
- Optical character-recognition technology that can create documents in screen-readable electronic form from printed ones, including an optical scanner (desktop, handheld or wearable).
- Systems with audible, tactile or vibrating feedback, such as proximity detectors, which can alert individuals if they are too close to an object or another person.
- Website modifications for accessibility. This entails taking steps to ensure that job applicants and employees can access and timely complete job applications, online tests or other screening tools.
Documents in Braille or large print.
Ambient adjustments (such as brighter office lights); and sighted assistance or services (such as a qualified reader).

Asking about vision impairment

According to the new guidance, applicants are not required to disclose they have any type of vision impairment or disability unless they are seeking a reasonable accommodation to assist with some aspect of the application process, such as a larger font or Braille on the written application.

Employers cannot generally ask questions about obvious vision impairment. However, if you “reasonably believe” the applicant will need an accommodation to perform the job, you may ask if one is needed, and if so, what type.

For example, if a job applicant uses a white cane when entering the room for a job interview, you can ask if they would need a reasonable accommodation in the workplace.

Once someone is hired or after they’ve received an offer, you may ask certain questions such as:

How long the applicant has had the vision impairment.
What, if any, vision the applicant has.
The applicant’s specific visual limitations and what reasonable accommodations may be needed to perform the job.

The takeaway

The EEOC guidance is expansive, and this article focuses on the main parts of it. Among the other areas it covers are:

How an employer should handle safety concerns about applicants and employees with visual disabilities.
How an employer can ensure that no employee is harassed because of a visual disability.
The importance of keeping medical records of workers with a vision disability confidential.
How to avoid discriminating against individuals who are vision-impaired.

Finally, considering that nearly one in five U.S. adults has some form of visual impairment, this guidance aims to help employers find a solution for reasonable accommodation. Many accommodations can be implemented with little cost to a business.

If you have questions about the new guidance, please call us.