Federal Agency Issues Guidelines for Dealing With Job Harassment
Figuring out what constitutes workplace harassment--whether it concerns sex, race, disability or something else--and how to prevent or deal with it is a big and potentially expensive problem for employers.
To help employers and workers navigate this confusing terrain, the Equal Employment Opportunity Commission last week issued guidelines explaining employer liability, employee obligations and what steps should be taken to prevent and correct harassment.
“Issuing this guidance marks another step in the commission’s ongoing effort to promote voluntary compliance with the equal employment opportunity laws,” said EEOC Chairwoman Ida L. Castro. “Following the steps set forth in this guidance will help employers and employees safeguard their rights and avoid violations of the law.”
The EEOC guidelines interpret two U.S. Supreme Court rulings issued a year ago that said employers usually are liable for sexual harassment by a supervisor. In fact, the court ruled, an employer can be forced to pay damages to a worker who is sexually harassed by a supervisor, even if the company didn’t know about the harassment and the victim failed to complain.
However, if the harassment did not result in a “tangible job action” such as firing or demotion, the employer sometimes can defend itself successfully by proving it exercised “reasonable care” to prevent and correct the harassment through a strong anti-harassment policy and quick response to any complaints. The employer also must prove that the employee failed to use existing complaint procedures.
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The EEOC guidelines took those two decisions (Burlington Industries vs. Ellerth and Faragher vs. Boca Raton), which dealt only with sexual harassment, and applied the same standard of liability to other types of workplace harassment, including race, age, national origin, disability, participation in complaint proceedings and harassment based on opposition to discrimination.
In these harassment guidelines, the EEOC also included practical advice for employers, such as how to conduct an investigation. In addition, the commission issued a summary for small companies that may not have full-time legal help to monitor workplace laws.
EEOC guidelines are not laws but are frequently cited by courts ruling on workplace issues.
“We really tried to color in the lines,” said Ellen Vargyas, EEOC legal counsel. “We think this is a useful way to help everyone understand what they can do and can’t do and hopefully stay out of trouble.”
Complaints about harassment in the workplace have risen sharply since Congress amended the Civil Rights Act in 1991 to allow victims of job discrimination to win as much as $300,000 in damages from their employers.
More than 15,600 sexual harassment charges were filed with the EEOC in fiscal 1998, a slight decline from the year before but more than double the number filed in fiscal 1991. Racial harassment charges rose to nearly 10,000 in fiscal 1998 from nearly 5,000 in fiscal 1991.
All harassment charges, including sexual harassment, constituted 27.6% of all charges filed with the EEOC in fiscal 1998, compared with 15% of all charges in fiscal 1991.
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The EEOC guidance is helpful to employers because “it does give some nuts and bolts” of how to craft a strong anti-harassment policy, and it clarifies questions that the court decisions had left fuzzy, said Marjorie Johnson, a legal analyst with CCH Inc., a publishing company based in suburban Chicago that specializes in human resources issues. “What this does is let employers know what they need to do to combat harassment.”
For example, the EEOC guidelines note that an anti-harassment policy should clearly state that the employer will not tolerate harassment or any retaliation against anyone who complains of harassment, and it should explain what kind of conduct is prohibited.
The complaint procedure should be confidential, the guidelines state, and employees should be able to complain through several avenues rather than only to the immediate supervisor, who might be the harasser.
The guidelines even detail what sort of questions should be asked during an investigation and what kind of measures could be used to stop harassment and correct the effects.
“Harassment remains a pervasive problem in American workplaces,” the guidelines state. “While the antidiscrimination statutes seek to remedy discrimination, their primary purpose is to prevent violations.”
The EEOC guidance and related documents are available on the commission’s Web site (https://www.eeoc.gov).
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Times staff writer Nancy Rivera Brooks covers workplace issues for The Times. She can be reached at nancy.rivera.brooks@latimes.com.
