The U.S. Equal Employment Opportunity Commission (EEOC) proposed new antiharassment guidance January 10 and is seeking input from the public. It will accept comments until February 9.
Notably, the guidance states that discrimination (and therefore, harassment) based on sexual orientation and gender identity is prohibited by federal law. That position isn’t new (see EEOC Doubles Down on Sexual Orientation Discrimination Stance in New Guidance), but all of the federal courts of appeal that have addressed the issue disagree.
One, however, could soon cause a split among the circuits. The 7th U.S. Circuit Court of Appeals last summer upheld its own precedent, ruling that sexual orientation is not currently prohibited by federal law. It did so, however, quite grudgingly and has since vacated that opinion and agreed to reconsider the case. The full court—instead of the usual three-judge panel—heard oral arguments November 30, 2016. A decision is pending.
New Guidance Is Response to Claims Increase
The commission said that new harassment guidance is needed because the number of charges involving harassment claims has increased in recent years. About 27% of charges filed with the commission contained harassment claims in 2010; by 2015, that had increased to about 31%. Data for 2016 is not yet available.
“Harassment remains a serious workplace problem that is the concern of all Americans. It is important for employers to understand the actions they can take today to prevent and address harassment in their workplaces,” said Jenny R. Yang, EEOC chair, in a statement.
The new Enforcement Guidance on Unlawful Harassment addresses harassment based on race and color, national origin, religion, sex, age, disability, and genetic information. It explains when harassment amounts to discrimination under federal law and when an employer can be held liable for such discrimination.
EEOC said the guidance advances one of its current enforcement priorities: “preventing harassment through systemic enforcement and targeted outreach.”
In a press release announcing the guidance, the commission said it will review public input and consider appropriate revisions to the proposed guidance before finalizing it. The proposed guidance and instructions for submitting comments are available here.
