With harassment increasingly in the news, employers need accurate, current advice on where the courts and the EEOC stand. The EEOC’s proposed enforcement guidance on unlawful harassment gives employers a comprehensive overview of the EEOC’s position. The final version of the guidance is expected to be released soon. (The proposed guidance is available at https://www.regulations.gov/contentStreamer?documentId=EEOC-2016-0009-0001&contentType=pdf.)
The proposed guidance notes several issues that employers sometimes overlook because those issues deal with situations outside the typical harassment scenario. Because the EEOC has taken the time to identify these issues, it considers them priorities and employers should be especially vigilant about them.
For that reason, no matter what changes happen to the guidance between its proposed and final versions, the following ten easily overlook harassment issues are important to keep in mind:
- Racial harassment includes harassment based on race-linked traits, such as facial features or hair.
- National-origin harassment includes harassment based on attire, diet, foreign accent, and limited English proficiency.
- Religious harassment includes harassment based on atheism, lack of religious belief, religious attire, and requests for religious accommodation (and using those accommodations).
- Sexual harassment includes not only harassment based on sexual interest (“come ons”) but also harassment devoid of sexual interest, such as gender-based epithets or sexist comments (“put downs”), as well as sex stereotyping based on assumptions about how different genders work well or their family responsibilities; it also includes harassment based on pregnancy or lactation needs, as well as harassment based on sexual identity and sexual orientation.
- Age-based harassment includes harassment based on relative older age, but does not include harassment based on relative younger age (“people in their forties work harder than those in their fifties” is harassment, but “people in their fifties work harder than those in their forties” is not).
- Disability-based harassment includes harassment based on requests for reasonable accommodations (and using those accommodations).
- Genetics-based harassment includes harassment of an employee based on the genetics or medical history of an employee’s family member.
- Incorrect perceptions that an employee has a protected characteristic can still lead to unlawful harassment. Harassing a straight employee based on a misperception that he is gay, or a Latino employee based on a misperception that he is Arabic, can be unlawful harassment.
- That a harasser belongs to the same protected class will not insulate the employer from liability.
- Harassment based on the intersection of two protected characteristics is unlawful harassment. So if a harasser targets only Black females (but not Black males, and not other females), that is still unlawful harassment.