If you’ve missed the first two installments of our review of the EEOC’s proposed guidance on harassment and hostile work environment investigations, you can find them in our blog.  For the final segment, we’ll discuss the scope of conduct in hostile work environment claims, as well as liability for employers in different harassment situations.

In determining the scope of a complaint, or the duration of how long the complained-of behavior occurred, the EEOC’s investigators will consider conduct from several years prior to the complaint, as long as it is “sufficiently related to the” hostile work environment claim.  A hostile work environment claim “may include any hostile conduct that affects the complainant’s work environment.”

With regard to the conduct that can be considered, even if it is not directed at the complaining employee, harassing conduct can affect an employee’s work environment.  As an example, the agency sites gender-based epithets used in the workplace that are not necessarily directed at a complainant.

Harassing conduct does not have to occur in the workplace.  Rather, it may occur in a work-related context outside the workplace, or be executed through use of company communications systems while employees are not in the workplace.  In addition, employers may be liable for conduct that occurs outside the workplace when the conduct has consequences in the workplace.  Harassment from a supervisor outside the workplace is more likely to be considered conduct affecting a subordinate’s status.

The guidance on employer liability could be another three-part series, however, the different standards of liability can be summarized as follows:

• If the harasser is “a proxy or alter ego of the employer,” the employer is automatically liable for the hostile work environment.
• If the harasser is a supervisor, and a tangible employment action against the victim takes place, the employer is vicariously liable.
• If the harasser is a supervisor and there is no tangible employment action, the employer may limit its liability through the Faragher-Ellerth affirmative defense.
• If the harasser is any person other than a proxy or supervisor, the employer is liable for the hostile work environment if it can be shown the employer failed to prevent the harassment or take corrective action in response to the harassment when the employer should have been aware of it.

For those unaware of the Faragher-Ellerth defense, employers can avoid liability by providing they acted reasonably to prevent and promptly correct harassment, and the complaining employee unreasonably failed to use the employer’s complaint procedure or to take other steps to avoid or minimize harm from the harassment.

While we won’t get into the minutiae of the liability guidance, the EEOC guidance includes an extensive discussion of what constitutes an effective anti-discrimination and anti-harassment policy.  If your organization is looking to update or improve its policies, this would be a fantastic place for it to start.  The important part is that employers need to have a policy, it needs to be clearly communicated to employees, and the employer needs to take action when employees bring complaints under the policy.

The guidance, while not adopted yet, is incredibly detailed, and provides for employers and investigators on what they should be looking for when a complaint of discrimination is made.  If you, or your organization, need assistance with workplace harassment complaints, or creating effective policies for your employees, contact Wiley Reber Law, for legal and investigative experience that works.