Proposed Workplace Harassment Guidance Issued

The Equal Employment Opportunity Commission (EEO) issued proposed workplace harassment guidance with comments due by November 1st. A Subcommittee in the House of Representatives held an oversight hearing examining the Occupational Safety and Health Administration (OSHA). The EEOC reported undertaking additional litigation in the recently completed fiscal year and the Labor Department and Federal Trade Commission entered into a memorandum of understanding to increase collaboration.

EEOC Issues Proposed Workplace Harassment Enforcement Guidance – The Equal Employment Opportunity Commission (EEOC) released a proposed “Enforcement Guidance on Harassment in the Workplace.” EEOC is seeking public comment on the proposed guidance that are due by November 1st. According to the EEOC, it initially released proposed guidance on workplace harassment in 2017 but it was not finalized. More than one-third of charges received by the EEOC from 2016 – 2022 included a harassment allegation.

The guidance, which includes 40 examples, focuses on the following three components of a harassment claim: 1) legally protected characteristics and causation, 2) discrimination concerning a term, condition, or privilege of employment, and 3) liability. The EEOC stated that the proposed guidance “addresses the proliferation of digital technology and how social media postings and other online content can contribute to a hostile work environment.”

House Subcommittee Holds OSHA Hearing – The Subcommittee on Workforce Protections of the House Committee on Education and the Workforce held an oversight hearing on “Examining the Policies and Priorities of the Occupational Safety and Health Administration” (OSHA). Representative Kevin Kiley (R-CA), chairman of the Workforce Protections Subcommittee criticized OSHA for failing to fulfill its mission “to ensure the nation’s workers have safe and healthy workplaces.” As examples, he cited a 6.3% increase in reported worker injuries in 2021 as compared to 2020 and a fatal work injury rate that is the highest annual rate since 2016.


Douglas Parker, Assistant Secretary of Labor for Occupational Safety and Health, Department of Labor provided testimony highlighting the activities of OSHA. He noted that OSHA is working on improving efficiencies and during the last seven months reduced the average age of pending cases by 36% and decreased the inventory of pending cases by 18% to 1,935. He discussed OSHA’s focus on addressing mental health as part of a comprehensive approach to worker health.  He stated that last year OSHA developed a “workplace stress toolkit for employers with guidance, training, real world solutions, and outreach materials to help improve employee mental health and well-being.”


OSHA, according to Mr. Parker, is involved in outreach and engagement with employers and industry partners. He highlighted the Safe + Sound program that encourages and assists employers to develop safety and health management systems, the Voluntary Protection Programs that recognizes and partners with businesses that “exemplify a systematic approach to health and safety”, and the On-Site Consultation and Outreach Training programs that provide free, on-site services to employers to ensure that they have the information they need to comply with their obligations to protect workers.


In enforcement, last year, OSHA began a national emphasis program (NEP) on heat illness prevention that has resulted in over 4,000 heat-related inspections. Earlier this year, OSHA started an NEP focused on preventing injuries from falls, which after traffic incidents, Mr. Parker cited as the leading cause of fatal workplace injuries. In July, OSHA launched another NEP to prevent workplace hazards in warehousing, distribution, and higher risk retail sectors.


Mr. Parker discussed the important role that workers and the unions that represent them play in workplace safety. He noted that OSHA encourages partnerships between employers and unions in “addressing workplace hazards and building a mutual commitment to safety and health on the job.”


EEOC Reports Increased Litigation – The Equal Employment Opportunity Commission (EEOC) announced that during the fiscal year that ended on September 30th, it filed 143 new employment discrimination lawsuits, which was a more than 50% increase over the prior fiscal year. The filings included 25 systemic lawsuits, which the EEOC defines as those in which there is a “pattern or practice, policy and/or class cases where the discrimination has a broad impact on an industry, profession, company or geographic location.” Additionally, the EEOC brought 32 non-systemic class lawsuits seeking relief for multiple parties and 86 cases asking for relief for individuals.


The EEOC highlighted the issues covered by the litigation including recruitment and hiring barriers, discrimination against individuals with disabilities, long-term effects of COVID-19, advancing equal pay, combatting unlawful harassment, and protecting vulnerable workers and persons from underserved communities. EEOC Chair Charlotte A. Burrows stated, “The EEOC’s litigation program is an important tool to ensure compliance with the nation’s anti-discrimination laws and promote equal employment opportunity when the Commission is unable to obtain voluntary compliance.”

DOL and FTC Enter an Agreement – The Department of Labor (DOL) and the Federal Trade Commission (FTC) announced the signing of a memorandum of understanding (MOU) that will result in close collaboration through the sharing of information, cross-training of the staff at each agency, and partnering on investigations. Both agencies seek to protect workers from harm resulting from unfair competition or deceptive practices that could include collusive behavior, misclassification of employees, illegal claims about earnings and work-related costs, use of noncompete and nondisclosure provisions, and the impact of algorithmic decision-making on workers.  FTC Chair Lina M. Khan stated, “Deepening our partnership with DOL will ensure that we can work collectively to tackle illegal conduct that suppresses wages, reduces access to good benefits and working conditions, and stifles economic liberty for workers across the economy.”


Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at