Is Your Anti-Harassment Policy Effective in the Eyes of the EEOC?

By Jeanette Coleman, SPHR & SHRM-SCP on May 14, 2024
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In September of 2023, the Equal Employment Opportunity Commission (EEOC) issued its Proposed Enforcement Guidance on Harassment in the Workplace. While the guidance has yet to be finalized, employers should be aware of changes from the EEOC that may be coming down the pipeline in 2024 and beyond.  

The proposed guidance, as written, would bring a number of changes to the HR operations of covered employers across the country, including the introduction of minimum standards for: 

  • Effective anti-harassment policies 
  • Anti-harassment training programs  
  • The employee complaint, evaluation, investigation and response process
  • Corrective action  

The EEOC’s proposed guidance represents a cultural shift and possibly sweeping legal and compliance changes throughout the country. Are you ready for the EEOC’s potential upcoming changes?  

In this post, we’ll break down what the proposed guidance means for employers. Armed with the knowledge of what to expect, you’ll be prepared for EEOC enforcement.  

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EEOC Timeline for Proposed Enforcement Guidance on Workplace Harassment

In September of 2023, the EEOC issued a lengthy document describing its proposed guidance on what makes an effective anti-harassment policy. This action was taken in response to an endemic problem recognized by the EEOC: between 2018 and 2022, 35% of all charges filed with the EEOC involved harassment allegations.  

The EEOC accepted comments from interested parties about the proposed guidance until November 1, 2023 (the “comment period”). Employers, attorneys and employee action groups all had the chance to take in the proposed guidance, understand how it would affect them if implemented as written, and submit arguments to the EEOC in favor of or against the EEOC’s stance.  

As we mentioned, the proposed guidance hasn’t been finalized yet. The EEOC may make changes to the guidance after considering feedback received during the comment period. After this, publication of the final version of the EEOC’s guidance may happen, or it may not.  

According to JD Supra, one of the most widely trusted legal intelligence, news and analysis sources, the publication of the EEOC’s new guidance is “likely . . . for the first time since 1999.” If successful, the publication of the guidance in its final form would be expected in 2024.   

RELATED: From Charges to Resolution: Mastering EEOC Mediation and Settlement >> 

What Would the New EEOC Guidance Require of Employers?  

The new EEOC guidance would require a number of changes from covered employers who don’t already have a thorough anti-harassment policy, anti-harassment training program, and harassment complaint and investigation procedures in place.

Highlights include the following:  

Requiring employers to prohibit harassment based on an employee’s sexual orientation or gender identity.

The EEOC’s guidance specifically mentions discriminatory and harassing acts in the form of forbidding individuals to use the bathroom or other gender-segregated facility consistent with the employee’s identified gender; from intentionally or repeatedly using the wrong name or pronoun for an employee’s identified gender, or ignoring harassment of the individual based on stereotypes about gender.  

Interestingly, this is a position that is already shared by the EEOC in its public-facing website guidance. The EEOC states that “the law forbids sexual orientation and gender identity discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits and any other term or condition of employment.” 

RELATED: Conducting a Sexual Harassment Investigation: 13 Workplace Tips >> 

Enforcing a set of minimum standards for what makes an effective anti-harassment policy. 

The EEOC’s proposed guidance would require any covered business to implement an anti-harassment policy that, at minimum, contains the following:  

  • Definitions of prohibited conduct  
  • Requirements that supervisors report harassment if they come to know about it  
  • Multiple avenues for employees to report harassment, including during weekends and evenings 
  • Clear contact information for reporting harassment  
  • An explanation of how employees can initiate a complaint, and what to do if they need to go around their supervisor to do so 
  • Information about the prohibition against retaliating against an employee who has initiated a complaint or assisted an employee who has 
  • Information about required confidentiality in the complaint process  
  • Available alternative dispute resolution processes  
  • Versions of the policy available in the language(s) that the employees read and speak 

RELATED: Eradicating Workplace Harassment with a Strong Zero Tolerance Policy 

Enforcing a set of minimum standards for what makes an effective anti-harassment training program.  

The EEOC’s proposed guidance would require any covered business to implement an anti-harassment training program that, at minimum, is or accomplishes the following:  

  • Is specific to the business’s workplace and workforce  
  • Is provided at regular intervals  
  • Explains the anti-harassment policy  
  • Explains the complaint process  
  • Gives descriptive examples of prohibited harassment and other types of conduct that may become harassing behaviors if they go unchecked  
  • Explains an employee’s rights if they are a victim of harassment or report the harassment of another employee  
  • Explains managers and supervisors’ responsibilities to prevent, report, correct, and stop harassment  

RELATED: How Employers Can Be Held Liable for Workplace Social Media Harassment >> 

Enforcing a set of minimum standards for what makes an effective harassment complaint procedure.  

The EEOC’s proposed guidance would require covered businesses to implement a harassment complaint procedure that, at minimum, provides for the following:  

  • Effective investigations that occur promptly following a complaint 
  • Corrective actions that occur promptly following an investigation  
  • Confidentiality and anti-retaliation protections that are adequate enough to encourage employees to report harassment  
  • A lack of obstacles in the way of an employee initiating a complaint, including unnecessary expenses, unnecessary “hoops” to jump through, and barriers to communication with reporting contacts 
  • Investigations that are conducted by unbiased individuals and take into account information from each person involved in the scenario  

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Need a Hand Revamping Your Anti-Harassment Policy?  

Meet Axcet HR Solutions: your dedicated HR compliance experts

Keeping up with employer requirements under the laws enforced by the EEOC will pay dividends for your organization. Compliance will help you avoid legal risk, maintain your positive company culture, and retain your most valuable resource: your talent. From big picture items, like anti-harassment policy and anti-harassment training development, to situation-specific tasks, like guiding you through an EEOC investigation, Axcet HR has your back. 

To learn more about how Axcet HR Solutions can help, schedule a consultation with our experts today. 

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