What Qualifies As Harassment?

On June 18, 1999, the federal Equal Employment Opportunity Commission issued a new Enforcement Guidance addressing employers’ vicarious liability for harassment by supervisors. Some words that describe the new guidelines include "expansion" and "amplification." Some say EEOC has taken a court ruling and applied its own version of enforcement procedures, putting small businesses — like pest control companies — at increased risk for harassment-related litigation. Remember, EEOC can enforce anti-discrimination provisions differently from the courts and, although their policy guidance does not have the force of law, courts frequently cite it in their rulings. Of course, failure to comply with EEOC requirements can result in significant financial liability for employers.

Employers with 15 or more employees are covered by Title VII of the Civil Rights Act and the associated anti-harassment provisions. Additionally, most states in the U.S. have similar regulations that apply to businesses with fewer than 15 employees. Usually, these state requirements are more stringent. Employers are required to abide by the stricter of the two.

The guidelines result from the two 1998 Supreme Court rulings: Burlington Industries vs. Ellerth, 118 S. Ct. 2257; and Faragher vs. City of Boca Raton, 118 S. Ct. 2275. In these cases, the Court ruled that employers are "vicariously liable" if a supervisor harasses an employee, even if management wasn’t aware of the incident. The Court also held that if the harassment includes firing, demoting or relocating the employee ("tangible employment actions"), the company can be sued even if it has a comprehensive anti-harassment policy. Apparently, this wasn’t enough for EEOC.

Now, as a result of their new Enforcement Guidelines, the Commission has:

• Expanded the court’s rulings by making them applicable to harassment based on race, sex (of a sexual or non-sexual nature), national origin, age and disability, along with harassment based on opposition to discrimination or participation in a complaint procedure (retaliation).
• Widened the definition of "supervisor" to include employees who merely "recommend" as well as "effectively" influence workplace changes.
• Amplified liability for employers by including in the definition of a "tangible
  employment action," promotions, adjustments in benefits or pay and changes in work assignments, even if a person retains the same salary after the change.
• Added on to the definition of "employer," officials who qualify as "alter egos" or "proxies" (i.e., president, owner, partner or corporate officer).

Based on these new enforcement procedures, we strongly recommend PCOs:

• Revise and expand anti-harassment policies to prohibit harassment based on race, national origin, age and disability. Include any other protected classes in your state, county or company (i.e., marital status, sexual orientation or others).
• Ensure harassment policies contain provisions forbidding retaliation.
• Immediately train supervisors and managers on the company’s anti-discrimination policy against harassment. The training should be comprehensive, detailed and practical. Include examples of prohibited conduct, confidentiality, various avenues to report harassment and how managers should handle complaints. Document training and participation.
• Ensure that policies, procedures, re-porting structures and company’s culture encourage employees to report harassing conduct before it becomes severe.
• Widely disseminate and vigorously enforce anti-harassment policies. Redis- tribute the policy frequently. Ensure all new hires have a copy of the policy.

The worst thing you can do is nothing! If you haven’t already, update policies and train your managers regarding anti-harassment guidelines before it’s too late.