06-28-2018
The Equal Employment Opportunity Commission (EEOC) provided a proposed version of sexual harassment guidance to the Trump administration in January 2017 - 10 days before Trump was inaugurated. In preparing the guidance, the agency consulted a task force of lawyers for workers and businesses and employment law scholars and gave the public the opportunity to comment. The document was intended to provide official EEOC policy on a range of topics, including how severe offensive conduct has to be to qualify as harassment and the circumstances under which an employer can be liable for actions by managers and other workers. The guidance also provides specific, factual scenarios to describe how the law applies in real workplaces and details a number of “promising practices” that businesses can take to prevent and address harassment on the job, centered on helping employers understand their legal responsibilities.
The delay in the White House’s approval of the guidance raises many questions about the EEOC’s role in enforcing anti-harassment law. Questions also remain about the White House’s oversight of rulemaking by independent agencies like the EEOC and the Trump administration’s approach to sexual orientation and gender identity discrimination. The uncertainty comes at a time when issues around sexual harassment continues to percolate as public attention on issues of sexual harassment shows little signs of slowing down.
Victoria Lipnic, Acting EEOC Chair, recently indicated that she has no plans to release the guidance without White House approval. “I would not do that, and I do not think that’s appropriate for the EEOC,” Lipnic told Bloomberg News. “I believe in a unified executive and I believe that their review is important and necessary.” Meanwhile, the proposed guidance is publicly available through the EEOC’s website.