This week, the Equal Employment Opportunity Commission issued a proposed Enforcement Guidance on workplace harassment. It’s 75 pages long, so a little too much to cover in a single blog post. The EEOC is seeking comments from the public until February 9, so I will start with the comment-worthy provisions. Next week, I’ll post about the proposed Guidance more generally. Overall, the EEOC has done a decent job, but here are my five “nits,” some of which are significant.

No. 1. Using the wrong name or pronoun in addressing or talking about a transgender individual is a form of sexual harassment. I get that people may do this to irk, annoy, and – yes – harass a transgender individual. But I also suspect that there are people who might have a hard time adjusting to the transition of a co-worker whom they’d known and worked with for a long time as a member of a different biological sex. Not necessarily object to the change, mind you, but simply have trouble getting used to using the new name and pronoun. In light of the New York City Human Rights Law guidance saying that it might be unlawful to fail to refer to a transgender person as “ze” or “hir,” I’d like more clarification about what the EEOC thinks people should do. If a transgender person wants to be called “ze” or “hir,” and the co-worker doesn’t use those words but does address the individual with the appropriate “he” or “she” based on the transgender person’s current identity, does the EEOC consider that to be harassing? If a co-worker who has known Juanita as “John” for 25 years and slips up and calls Juanita “John” and “he” a few times by accident, is that harassment? (Think about how hard it is to get used to addressing a newly married woman by her husband’s last name. It generally takes me about six months to get it right.)

No. 2. Harassment based on LGBT status, or being heterosexual, is sex-based harassment. I’ve written about this issue quite a few times. (Two of my pontifications are available here and here.) I oppose harassment of individuals on this basis, but I don’t think Title VII, as currently drafted, prohibits it. (Courts may disagree – we’ll find out soon.)

No. 3. Use of “code words” can be unlawful harassment. I don’t disagree with this in the abstract, but it’s another area where the Guidance needs to provide more clarity. One example the EEOC uses is calling an African-American man “boy” or referring to a protected group as “you people.” I understand where the EEOC is coming from, but I also remember from riding on the school bus in Raleigh, North Carolina, that males (regardless of race) were addressed as “boy” all the time. So, yes, use of “boy” can be racist, but it may not be in every situation. And “you people” isn’t always meant as an insult, much less a slur on a protected group. I think the proposed Guidance implicitly recognizes this, but since it will be used by investigators as well as employers and their counsel, the discussion of “context” needs beefing up.

No. 4. Legal sexual favoritism versus illegal sexual favoritism. I don’t know how the EEOC plans to actually enforce the standard it proposes. This is the way I have always understood the law on sexual favoritism: Let’s say a supervisor is having a consensual affair with Suzie, who reports to him, and because of the affair he gives her the cushy jobs and other things she doesn’t deserve. As a result, her co-workers — who are not having affairs with the boss — miss out on these opportunities. That’s unfair, but it’s not unlawful because the relationship that resulted in the favoritism was consensual. It’s more like nepotism. On the other hand, if Suzie submitted to the supervisor’s sexual advances only because she was afraid for her job, then she and her co-workers who missed out on the cushy jobs could have claims for sexual harassment.

The EEOC’s proposed guidance doesn’t say this. The EEOC standard seems to be, if you have enough partners — even if those relationships were consensual — then the people who were left out will have valid harassment claims against you. But if you’re relatively monogamous with your workplace affairs, then the EEOC would find it to be the equivalent of nepotism – unfair, but legal.

The consensual/non-consensual distinction makes a lot more sense to me than the monogamous/promiscuous distinction does.

No. 5. “Unwelcomeness.” Thanks to a U.S. Supreme Court decision from 1986, the way we tell the difference between a consensual and a non-consensual act or relationship is by determining whether the behavior was “unwelcome” to the recipient. This makes a lot of sense. This is why it isn’t usually “harassment” if you consensually date, or even have an affair with, someone you work with. Because both parties want to be involved, the behavior is not “unwelcome.”

On the other hand, if one party does not want to be involved or participate, then the behavior would be “unwelcome” to him or her.

If the behavior is unwelcome, a separate issue is whether the effect of the unwelcome behavior on the victim was “hostile” enough to give rise to a harassment claim. In 1993, the Supreme Court said that trivial “unwelcome” behavior might not be enough, but that the victim doesn’t have to have a nervous breakdown either.

Here’s the normal (oversimplified) analysis of a harassment claim:

Was the behavior unwelcome? If no, case dismissed. If yes . . .

How bad was it?

Was it so bad that it was “hostile,” both in the plaintiff’s mind and to a reasonable person in her position? 

If no, case dismissed. 

If yes, plaintiff wins.

The EEOC proposes to muck this up by saying that if the behavior is “hostile,” then by definition it is also “unwelcome.” This puts the cart before the horse. How can you determine whether behavior was “hostile” unless you first ask whether the behavior was “unwelcome”?

For example, let’s say John kisses his employee, Linda. To know whether that is potentially sexual harassment, you first need to know whether Linda wanted him to kiss her. Were they dating? Were they having an affair? Are they close friends who always greet each other with a kiss? Are they related? Or was John taking advantage of Linda because he was her boss? In other words, we need to know whether John’s behavior was “unwelcome” to Linda.

If the kiss was unwelcome, then we need to know how bad it was. Did John give her a light peck on the cheek? If so, that might be inappropriate, but probably not bad enough to give Linda a lawsuit. Did John grab her and passionately kiss her on the mouth? That’s much worse.

This is why it makes sense to consider “unwelcomeness” and “hostility” separately.

It appears to me that the EEOC is trying to do away with the separate “unwelcomeness” requirement because it would result in more successful harassment claims.

Here is the way the EEOC’s proposed analysis would go:

Was the behavior so bad that it was “hostile,” both in the plaintiff’s mind and to a reasonable person in her position? Uh, gee, it’s hard to say. Did she want to make out with that guy in the supply closet, or was she forced or pressured into it?

Shut up! Plaintiff wins!

And so, dear readers, those are my five nits with the EEOC’s proposed Guidance. Whether you agree with me or not, please do let the EEOC know what you think.


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