In letter, SHRM and CUPA-HR challenge EEOC's harassment guidance

Dive Brief:

In a March 21 letter, SHRM joined the College and University Professional Association for Human Resources (CUPA-HR) in suggesting changes to the Equal Employment Opportunity Commission's (EEOC) proposed guidance on harassment prevention. The letter responded to an EEOC request for public comments on the guidance with the hope of better aligning that guidance with federal laws.
The EEOC’s opinion is that Title VII of the 1964 Civil Rights Act prohibits discrimination based on sexual orientation. SHRM recommended that the agency clearly state that this opinion isn’t established in federal law.
Current EEOC guidance also states that an employer can be liable for the adverse behavior of someone acting as an alter ego for the employer. SHRM suggested that the agency delete that statement because the Supreme Court, it wrote, didn’t create an alter ego exemption when it decided the Faragher and Ellerth cases. The court has ruled that if an employer takes reasonable steps to prevent harassment or correct such behavior, the employer is not liable.

Dive Insight:

The EEOC, like many federal agencies, often requests public comments on proposed rules or guidance. Since employers have a critical stake in how rules and guidance are complied with and enforced, they should submit comments whenever they’re requested.

SHRM points out areas in which the EEOC doesn’t distinguish the law’s provisions from its own opinions. The agency applies Title VII’s anti-discrimination provisions to cover sexual orientation, even though the law wasn’t written with that intent. The 11th Circuit Court of Appeals actually ruled against the EEOC on that same basis.

SHRM disputes the long-held belief that words or behavior are considered sexually inappropriate if the recipient of the alleged harassment interprets them as such. In its comments, SHRM writes that the guidance shouldn’t assume that because certain conduct is unwelcome that it’s also sexually offensive.

Employers should, nonetheless, follow up on complaints; not doing so leaves them open to lawsuits and the possibility that courts will rule against them for inaction.