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New Sexual Harassment Guidelines Would Clarify Employees' Rights

Workplace harassment claims

The past several years have seen numerous legal and practical changes in the area of workplace harassment. The federal agency that investigates harassment claims is now proposing new guidance to clarify employees' rights and employers' responsibilities.

Last month, the Equal Employment Opportunity Commission (EEOC) announced new proposed guidelines for employers regarding illegal workplace harassment. The EEOC previously announced new guidelines in 2017, but they were never adopted.

As changing workplaces grapple with new challenges and patterns of behavior, it's important for employees to know their rights. If you believe you are a victim of unlawful harassment at work, contact Nilges Draher LLC today. We can help.

What's the definition of workplace harassment?

While the new guidelines are a significant step, the basic definition of unlawful harassment has not changed. Harassment includes:

  • Unwelcome conduct based on a protected characteristic such as sex, race, color, religion, pregnancy, disability, age (over 40), or national origin, and either:
  • Enduring the offensive conduct becomes a condition of continued employment (quid pro quo), or
  • The offensive conduct is so severe and pervasive to create an intimidating, hostile, or abusive work environment.

Typically, harassment claims are based on a pattern of behavior, although single incidents can rise to the level of harassment if they are particularly egregious.

Unlawful harassment can be committed by anyone in the workplace: supervisors, coworkers, contractors, and non-employees, such as customers and vendors. Moreover, you don't have to be the direct target of harassing behavior to have a claim; anyone who is affected by unlawful harassment in the workplace has legal recourse.

How would the new guidelines affect harassment cases?

The new guidelines aren't a change to the baseline definition of harassment but rather a clarification of how recent changes in the law and the workplace have affected the enforcement of harassment claims. Specifically, the new guidelines:

  • Address the effects of Bostock: In Bostock v. Clayton County, the Supreme Court found that sexual orientation and gender identity are legally protected characteristics. The new guidelines clarify that harassment on the basis of sexual orientation or gender identity is unlawful.
  • Take into account social media and digital technology: The new guidelines address the proliferation of digital technology and digital harassment to explain how online content can contribute to hostile work environments.
  • Provide updated examples to address scenarios: With the post-COVID rise of remote and hybrid workplaces, the forms of harassment that can affect employees have changed. The EEOC's new guidelines would provide additional examples that apply to contemporary workplaces.

Again, the new guidelines are not themselves new law; they reflect changes in the law and in circumstances that have already happened. However, they would put employers on notice about their responsibilities and advise employees of their legal rights.

What to do if you are a victim of unlawful harassment

There are a few immediate steps to take if you believe you are a victim of illegal harassment in the workplace. First, make sure you get documentation – write down notes on what happened, talk to witnesses, and so on. Since harassment claims are usually based on a pattern of repeated behavior, being able to document that pattern is critical.

Second, report the harassment to your employer. If your employer has a protocol for reporting harassment, use it; if not, talk to your supervisor (or their supervisor if your supervisor is the one perpetrating the harassment), or to human resources. Get this report in writing so your employer can't claim ignorance later. Remember, you are legally protected from retaliation for reporting what you believe to be unlawful harassment in good faith.

It's also important to talk to an experienced employment law attorney about your rights and options – even if you haven't reported the harassment to your employer yet. We can guide you through this process and protect your rights, whether that means advising you "behind the scenes" or litigating on your behalf. Talking to a lawyer isn't a commitment to taking legal action; it's a chance to tell your story and learn about your options. If you are a victim of illegal harassment at work, contact Nilges Draher LLC for a free case evaluation. We can help.

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