With all of the changes in employment laws over the past year, a lot of our focus has been on getting you up to date on those in order to stay in compliance.  However, a big focus of our practice has been on workplace harassment and misconduct investigations.

Given the somewhat recent #MeToo movement bringing renewed public focus to sexual harassment in the workplace, the Equal Employment Opportunity Commission (“EEOC”) took it upon itself to update its guidance on harassment in the workplace in all forms.  The recently-released guidance provides employers, employees, and their advocates, insight on what the EEOC is looking for when allegations of workplace harassment in violation of Title VII are made.  For the next three weeks, we’ll be focusing on the different sections of the guidance, which has not yet been adopted, but is open for comment from the public and could be utilized by the agency after the notice-and-comment period is concluded.

This week we’ll discuss the “Covered Bases and Causation” section of the guidance.  The “covered bases” section of the guidance discusses the different protected classes that are covered under current discrimination laws: race, color, national origin, religion, sex, age, disability and genetic information.  As a reminder, the list of protected classes in Minnesota includes marital status, status with regard to public assistance, familiar status, membership or activity in a local commission, sexual orientation and gender identity.

Sexual harassment includes unwanted sexual attention or sexual coercion as well as non-sexual conduct based on sex, including sex-based epithets, sexist comments, or offensive conduct directed towards employees of a particular sex.  Sex-based harassment now also includes harassment based on pregnancy, childbirth, or related medical conditions.  To include Supreme Court caselaw, sex-based harassment also includes harassment on the basis of sexual orientation and gender identity.

With regard to disability discrimination, it includes discrimination due to an individual’s request for reasonable accommodation, due to an employee’s impairment or a record of a disability, and harassment “based on the disability of an individual with whom the complainant is associated.”  This is part of the EEO laws that cover “associational discrimination.”  Such association applies to all protected class harassment, and may include close familial relationships or close friendship with another individual belonging to a protected group.

With regard to establishing causation, the EEOC stated, “Causation is established if the evidence shows that the complainant was subjected to harassment because of the complainant’s protected characteristic, whether or not the harasser explicitly refers to that characteristic.”  According to the EEOC, causation can be established through facially discriminatory conduct, stereotyping, context, neutral conduct linked to facially discriminatory conduct, timing, and comparative evidence.

With regard to sexual harassment, the EEOC detailed the three ways a complainant can establish causation:

1. Explicit or implicit proposals of sexual activity;
2. General hostility toward members of the complainant’s sex; and
3. Comparative evidence showing how the harasser treated persons who shared the complainant’s sex compared to the harasser’s treatment of those who did not.

Obviously the matter of proving these actions took place is complicated, but investigators, whether they are internal or external, will be looking to find such incidents when looking into complaints of discrimination in the workplace.  If you, or your organization, is in need of workplace investigation services, contact Wiley Reber Law, for investigation experience that works.