The Equal Employment Opportunity Commission (“EEOC”) recently published proposed enforcement guidance regarding unlawful harassment in the workplace.  The proposed guidance, if adopted, would substantially update the EEOC’s current guidance, which only addresses sexual harassment (and which went into effect in 1990). To that end, the proposed guidance makes clear that, under Title VII, employee harassment based on an employee’s race and/or color, national origin, religion, sex (including stereotyping, pregnancy, childbirth or related medical conditions, gender identity, and sexual orientation), age, disability, and genetic information is unlawful.

The EEOC’s proposed guidance also describes the circumstances under which an employer – through the actions of a supervisor – may be liable for unlawful employee harassment under Title VII.  To establish an employer’s liability, the aggrieved employee must prove that:

• The alleged harassment the employee suffered was based on his/her membership in a protected class (i.e., age, disability, race and/or color, etc.); and
• The employee’s supervisor caused the employee to suffer an explicit change to the terms and conditions of his/her employment linked to the harassment (i.e., the employee was terminated, demoted, denied a promotion, prevented from using vacation time, etc.); or
• The employee’s supervisor subjected the employee to conduct that was sufficiently severe or pervasive to alter the conditions of the employee’s employment and create an abusive hostile work environment.[1]

According to the EEOC’s proposed guidance, under Title VII, if “harassment by a supervisor creates a hostile work environment that has not resulted” in an explicit change to the terms or conditions of the employee’s employment, the employer may defend by arguing that (i) it exercised reasonable care to prevent and promptly correct any harassment, and (ii) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer, or to take other steps to avoid harm from the harassment.  The foregoing defense, however, does not apply to harassment claims brought under Massachusetts law – G.L. c. 151B – because employers in Massachusetts are strictly liable for harassment committed by supervisors.

It is crucial that employers take the following steps to defend against employees filing claims of harassment:

• Maintain an anti-harassment policy that prohibits harassment and affords employees the ability to file internal complaints with Human Resources and/or members of management;
• Train employees on the employer’s anti-harassment policy to ensure they understand their rights and responsibilities under such policies;
• Promptly respond to any complaints received and ensure supervisors respond to situations of inappropriate conduct regardless of whether a formal complaint is filed.

If you have any questions about the proposed EEOC guidance, Massachusetts law on harassment, or would like assistance drafting and/or implementing an anti-harassment policy, please contact any member of the Labor and Employment Group.

[1]   Here, the employee must prove the harassment to which her/she was subjected was subjectively and objectively severe or pervasive.