Implications and guidance for NH employers

The legal landscape around harassment and discrimination in the workplace has evolved significantly in recent years. Given these changes, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance in April for the first time in 25 years. The new EEOC guidance reaffirms the EEOC’s commitment to preventing workplace discrimination and harassment, providing employers with a critical road map for fostering equitable and inclusive work environments. Understanding these changes is not just a legal obligation, it’s an opportunity for businesses to strengthen workplace culture and enhance employee morale.

Key highlights of the new guidance

The EEOC’s April guidance — running over 150 pages with nearly 400 footnotes and 75 detailed examples — outlines several critical areas aimed at clarifying and reinforcing the responsibilities of employers. It updates and consolidates a series of five previous guidance documents from the 1980s and 1990s and is effective immediately for all covered employers.

Notably, the guidance emphasizes the importance of preventing discrimination based on protected characteristics — such as race, color, national origin, sex, age, disability and genetic information — while noting various expansions in interpreting those characteristics.

For example, discrimination based on sex can include discrimination based on sexual orientation, gender identity, transgender status and pregnancy, including “outing” or “misgendering” one’s identity. Further, discrimination based on race can also include discrimination based on traits or characteristics linked to one’s race, such as one’s name, cultural dress or hair style. The guidance also highlights the importance of considering overlapping identities in harassment claims, recognizing unique vulnerabilities faced by such employees.

The guidance provides clearer directives on handling harassment claims, outlining steps employers should take to investigate and resolve complaints promptly and effectively. The consequences of failing to implement proper oversight — or for managers or supervisors engaging in any discriminatory or harassing conduct — are heightened; indeed, employers are now held more accountable for preventing harassment, and should be emphasizing proactive measures and effective reporting procedures.

Practical steps for employers

For businesses operating in New Hampshire, the implications of this guidance are significant. Here are some practical steps employers should consider to align with the EEOC’s directives:

Review and update policies. Begin by reviewing existing anti-discrimination and harassment policies. Ensure they reflect the latest EEOC guidance, including clear definitions of prohibited conduct and procedures for reporting issues.

Conduct training. Regular training sessions for employees and management on workplace discrimination, harassment prevention, and the importance of accommodations can help foster a culture of respect and inclusivity. Tailor training to address specific issues relevant to your workforce.

Establish clear reporting mechanisms. Implement and communicate clear procedures for reporting discrimination and harassment. Ensure employees understand their rights and the steps they can take if they encounter issues in the workplace.

Engage in interactive processes. When accommodating employees with disabilities, engage in a collaborative process to explore options. This approach not only complies with legal requirements but also demonstrates a commitment to employee well-being.

Monitor and evaluate. Regularly assess workplace practices and policies to ensure they remain compliant with the EEOC’s guidance. Consider conducting anonymous surveys to gauge employee perceptions of the workplace environment and address any concerns that may arise.

Document, document, document. Maintain thorough records of any complaints, investigations and actions taken in response. This documentation is crucial in demonstrating compliance and responsiveness in the event of an EEOC investigation or litigation.

As New Hampshire businesses navigate the complexities of employment law, the EEOC’s April guidance marks an opportunity to reevaluate practices and commit to a more inclusive workplace.

Though this updated guidance does not have the force or effect of law, it establishes a base standard by which the EEOC can analyze claims of harassment and discrimination in the workplace. Accordingly, by reviewing and following these guidelines, businesses can protect their employees and strengthen their organizational integrity.

Brian is a director and chair of McLane Middleton’s Education Law Practice Group. He can be reached at brian.garrett@mclane.com.