Authored by Dean R. Dietrich
The Equal Employment Opportunity Commission (“EEOC”) has taken action to withdraw the Commission Enforcement Guidance regarding harassment in the workplace (a 200-page document). While the focus of the announcement is on the language that provided protections for trans employees, the Commission decided to withdraw the entire Guidance document which included frequently asked questions and examples of various types of harassment in the workplace and what steps should be taken by an employer to address those situations.
The withdrawal of the Enforcement Guidance does not change the law, and employees are still protected from events of harassment in the workplace. It is unfortunate that assistance given to employers on how to address harassment has been taken away at the federal level. There is still potential for complaints being filed with the EEOC and investigations being conducted by the EEOC but one must wonder whether those complaints will be aggressively acted upon by federal authorities.
It is also important to remember that the State of Wisconsin (through the Wisconsin Fair Employment Act) will aggressively investigate claims of harassment in the workplace. It will involve a hearing process when a complaint is filed with the Equal Rights Division (“ERD”) and can take a very long time.
Companies should continue to enforce the federal and state law about harassment in the workplace and more importantly, employers must continue to do workplace harassment training to ensure a safe and welcoming work environment for all employees. The removal of the Enforcement Guidelines on workplace harassment should not change that effort.
CASE TO WATCH
A case pending before the 3rd Circuit Court of Appeals (in the State of Pennsylvania) is a case to watch for human resource professionals. A university professor was denied the accommodation of teaching remotely on the basis that she should have expected to be required to engage in in-person instruction which was deemed an essential function of her position. The job description for her position did not identify in-person instruction as an essential function and the university did not have a written policy addressing that requirement. It will be interesting to see if the courts will insist upon written declarations in some fashion that an employee must expect to come to work as part of their job responsibilities.
