Stakeholders get more time to comment on EEOC’s harassment guidance

February 06, 2017 - by: Kate McGovern Tornone 0 COMMENTS

Stakeholders now have until March 21 to comment on proposed antiharassment guidance from the Equal Employment Opportunity Commission (EEOC).

The move is in line with the new administration’s overall approach of pausing Obama administration initiatives and taking time to evaluate them, said Jonathan Mook, a founding partner of DiMuro Ginsberg PC and an editor of Virginia Employment Law Letter. Given the change in administration, it makes sense to provide stakeholders more time, he said.

The guidance included several notable provisions, including a prohibition on harassment based on sexual orientation and gender identity. The stance that Title VII of the Civil Rights Act prohibits discrimination (and therefore harassment) based on those characteristics wasn’t completely new to the Obama EEOC, but all the federal courts of appeal that have addressed the issue disagree (one is set to reconsider its ruling soon).

Other new provisions included a warning that the use of a name or pronoun that is inconsistent with an individual’s gender identity in a persistent or offensive manner is illegal harassment. The guidance also recommended civility training for employees and adopted a new “unwelcomeness” standard for sexual harassment.

But now that President Donald Trump has elevated commissioner Victoria A. Lipnic to chair of the commission, the fate of those issues may be in question. Lipnic has a varied voting record on Title VII’s coverage of sexual orientation and gender identity. On the other hand, the guidance is the result of a bipartisan harassment task force led by Lipnic and Commissioner Chai R. Feldblum, Mook noted.

Moreover, Lipnic has offered no public dissent over the guidance, a move she has employed in the past. When the EEOC issued guidance on pregnancy accommodations in 2014, she made a public statement making clear she found the guidance “wholly unpersuasive.” “If she wanted to dissent, she knew how to do so,” Mook said.

The EEOC said the harassment guidance was necessary because the number of charges involving harassment claims has increased in recent years. In 2010, 27.4% of charges filed with the commission contained harassment claims. In 2015, that number increased to 31.2%, the EEOC noted last month when it announced the guidance. Data for 2016 have since been released and show a slight decrease last year (to 30.8%).

Mook said there undoubtedly will be revisions, but there’s no telling how extensive they will be. It’s highly unlikely the commission will scrap the guidance entirely, he said. Because it was drafted with bipartisan support and the EEOC’s harassment guidance hasn’t been updated recently, “I don’t see the Trump administration . . . just deep-sixing this guidance,” he said.

The commission has already received 70 comments. The proposed guidance, instructions for submitting comments, and previously submitted comments are available here.

About Kate McGovern Tornone:
Kate Tornone is an editor at BLR. She has almost 10 years’ experience covering a variety of employment law topics. Before coming to BLR, she served as editor of Thompson Information Services’ ADA and FLSA publications, coauthored the Guide to the ADA Amendments Act, and published several special reports. She graduated from The Catholic University of America in Washington, D.C., with a bachelor of arts in media studies. Kate can be reached at ktornone@blr.com.
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