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EEOC's Updated Guidelines on Harassment, a Form of Workplace Violence

In a June 10, 2024 blog on this site, we noted that various federal agencies have articulated that workplace harassment is prohibited conduct which could land an employer in "hot water" if employees take action to prove such behavior is present and that they were damaged by it.


The Occupational Safety and Health Administration (OSHA) has found that harassment is a form of workplace violence and the Equal Employment Opportunity Commission (EEOC) has held that harassment violates various employment laws.


The EEOC recently published its updated enforcement guidelines on harassment which became effective on April 29, 2024.


Please watch this brief video presented by Kathleen M. Bonczyk, Esq. on what constitutes Quid Pro Quo v. Hostile Environment, the two forms of probhitied workplace-based harassment:






The EEOC's updated guidelines include a position statement regarding employer's liability as to Quid Pro Quo v. Hostile Environment. Per the EEOC, if an employee's complaint of "Quid Pro Quo" harassment is proven, there is no defense and liability is effetively automatic.


It should also be noted that as Title VII of the Civil Rights Act of 1964, the law enforced by the EEOC barring harassment, allows for reimbursement of attorney's fees and costs, an employer on the wrong side of a verdict could be liable for not just damages payable to the Plaintiff but also for what could ultimately be many thousands of dollars in the prevailing party's attorney's fees and costs (such as service of process and court reporter fees).


Per these guidelines:


A. Overview of Liability Standards in Harassment Cases


When a complainant establishes that the employer made an explicit change to a term, condition, or privilege of employment linked to harassment based on a protected characteristic (sometimes described as “quid pro quo,” as explained in section III.A), the employer is liable and there is no defense.

In cases alleging a hostile work environment, one or more standards of liability will apply. Which standards apply to any given situation depends on the relationship of the harasser to the employer and the nature of the hostile work environment. Each standard is discussed in detail in sections IV.B and IV.C, below.

To summarize:

  • If the harasser is a proxy or alter ego of the employer, the employer is automatically liable for the hostile work environment created by the harasser’s conduct. The actions of the harasser are considered the actions of the employer, and there is no defense to liability.

  • If the harasser is a supervisor and the hostile work environment includes a tangible employment action against the victim, the employer is vicariously liable for the harasser’s conduct and there is no defense to liability. This is true even if the supervisor is not a proxy or alter ego.

  • If the harasser is a supervisor (but not a proxy or alter ego) and the hostile work environment does not include a tangible employment action, the employer is vicariously liable for the actions of the harasser, but the employer may limit its liability or damages if it can prove the Faragher-Ellerth affirmative defense, which is explained below at section IV.C.2.b.

  • If the harasser is any person other than a proxy, alter ego, or supervisor, the employer is only liable for the hostile work environment created by the harasser’s conduct if the employer was negligent in that it failed to act reasonably to prevent the harassment or to take reasonable corrective action in response to the harassment when the employer was aware, or should have been aware, of it.

Negligence provides a minimum standard for employer liability, regardless of the status of the harasser. Other theories of employer liability—automatic liability (for proxies and alter egos) and vicarious liability (for supervisors)—are additional bases for employer liability that supplement and do not replace the negligence standard.


If the complainant challenges harassment by one or more supervisors and one or more coworkers or non-employees and the harassment is part of the same hostile work environment claim, separate analyses of employer liability should be conducted in accordance with each harasser’s classification.

(Emphasis added).



NOTE:


The EEOC's updated guidelines are available to review on line here:



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