Hunton Employment & Labor Perspectives

The U.S. Equal Employment Opportunity Commission (“EEOC”) published proposed enforcement guidance for workplace harassment for public comment on October 2, 2023. The proposed guidance can be found on the EEOC’s website. While the EEOC attempted to provide updated harassment guidance under the Trump administration in 2017, final guidance was never issued and if this new guidance is finalized it would represent the first time the EEOC has updated its workplace harassment guidance in nearly a quarter century.

Last week, the Ninth Circuit issued an opinion in Sharp v. S&S Activewear, L.L.C. where it confirmed that music in the workplace can form the basis of a Title VII sex harassment claim even when it is (1) not directed at any particular individual employee, and (2) offends both female and male employees.

A Virginia federal court last week dismissed a plaintiff’s hostile work environment claims because the plaintiff failed to check the “continuing action” box or specifically mention “harassment” or “hostile work environment” in her EEOC charge.

Governor Newsom has signed SB 331 (the “Silenced No More Act”) into law.  As discussed in our prior blog post, SB 331 will expand the existing restrictions on the confidentiality provisions recently put into place by SB 820 (which restricts the usage of confidentiality provisions in agreements related to sexual assault, harassment, or harassment) to also restrict the usage of confidentiality provisions related to all claims of harassment, discrimination, or retaliation under the FEHA.

California already has prohibitions on including non-disclosure provisions in certain settlement agreements related to sexual harassment.  Now California seeks to expand these prohibitions by enacting the Proposed California SB-331 (“Silenced No More Act”).  The new Act aims to prohibit provisions within any agreement that prevent or restrict the disclosure of factual information of claims related to harassment, discrimination, and retaliation.  The proposed bill recently passed senate and assembly, and if approved by governor, will become effective January 1, 2022.

The #MeToo movement has galvanized many into taking action to fight workplace harassment. Since the movement began in the fall of last year, the Equal Employment Opportunity Commission (EEOC)—tasked with enforcing laws prohibiting sexual harassment—has indicated it has seen an uptick in the amount of traffic to its website. But, it also indicated this increase in website visitors has not translated into an increase in formal complaints to the EEOC filed by employees against their employers. Still, the EEOC has carried the torch of the #MeToo movement, signaling that the lack of an increase in claims will not stop the agency from vigorously enforcing anti-harassment laws.

California’s Fair Employment and Housing Act (“FEHA”) not only prohibits discrimination, harassment and retaliation, but goes a step farther than similar state laws in its explicit requirement that employers take reasonable steps to prevent and correct such conduct.  Cal. Gov’t Code § 12940(k).  In 2016, the California Fair Employment and Housing Council promulgated regulations which set forth the required elements of a compliant prevention and correction program (2 CCR §§ 11023-11024), and in May 2017 the California Department of Fair Employment and Housing (“DFEH”) issued a Workplace Harassment Guide (the “Guide”) to clarify further employers’ obligations under these regulations.  

On November 21, 2016, the EEOC announced the release of new enforcement guidance addressing national origin discrimination.   Like many enforcement initiatives of late, the update is intended to address current cultural issues and legal developments.  It updates an EEOC compliance manual section from 2002 (Volume II, Section 13: National Origin Discrimination).  The EEOC also issued a small business fact sheet and a Q-and-A document.

On November 3, 2015, Houston voters rejected Proposition 1, a broadly-worded human rights ordinance that would have made it illegal to discriminate on the basis of, among other things, gender identity. Opposition to that ordinance coalesced around the issue of restrooms, with many citizens expressing fear that the law would allow men to use women’s restrooms.