EEOC Flexes Its Muscle on Anti-Harassment Litigation

By Erin K. Walsh and Lindsey M. Marcus - Franczek Radelet P.C.

June 20, 2018

In an unusual, coordinated litigation strategy, the U.S. Equal Employment Opportunity Commission (EEOC) last week filed seven lawsuits alleging workplace harassment. The lawsuits – which followed a reconvening of an EEOC task force on harassment – suggest that the EEOC is seeking to capitalize on the momentum of the #MeToo movement by emphasizing harassment enforcement actions. The lawsuits also underscore the potential consequences of allowing harassment in the workplace to go unaddressed.

The seven lawsuits – filed in Ohio, California, Texas, Missouri, Alabama, and New Mexico – are good examples of the range of harassment cases the EEOC pursues. Some features of the lawsuits include the following:

• Six of the seven lawsuits allege that female employees were sexually harassed, while one alleges racial and same-sex sexual harassment of a male Asian-American employee. 

• Five of the seven lawsuits allege that the harassment was perpetrated by a direct supervisor, manager, or owner. Two of these lawsuits also allege that the employees who complained about harassment were subjected to retaliation.

• Four of the seven lawsuits are based on an individual’s claim of harassment as opposed to a class action, an important reminder that an EEOC charge from just one employee can put an employer in the agency’s cross-hairs.

• Two of the lawsuits allege a failure to distribute a policy against sexual harassment and/or to train employees on sexual harassment or complaint procedures.

Approximately one quarter of the EEOC’s litigation in recent years has included allegations of workplace harassment. This trend is likely to increase in the current climate and given that harassment is one of the EEOC’s top priorities, according to its Strategic Enforcement Plan.

In addition, these lawsuits come as employers are awaiting the issuance of the EEOC’s guidance on sexual harassment, which has not been updated since 1990. The EEOC sought public input on the 75-page proposed guidance in January 2017 and submitted it to the White House for review in November 2017. However, the White House has yet to approve it. Although not binding on employers, EEOC guidance provides insight into how the EEOC interprets the law and is often relied upon by courts.

Employers should not wait for the issuance of the guidance to ensure that their sexual harassment and complaint procedures are up to date; that they provide anti-harassment training to all employees, including management; and that supervisors are trained on how to identify harassment and handle harassment complaints. We have also previously written about best practices for combating workplace harassment, which employers may find helpful.