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EEOC Harassment Guidance (Comment Period Extended Until March 21, 2017) Examples of the Role of Mistaken Belief in Employment Law

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On February 3, 2017, the  United States Equal Employment Opportunity Commission (“EEOC”) extended the public input period on its “PROPOSED Enforcement Guidance on Unlawful Harassment” (the “Proposed Harassment Guidance”). The Proposed Harassment Guidance is now open for public input until March 21, 2017.

As previously reported, EEOC’s “Enforcement Guidance on Retaliation and Related Issues” was made final on August 29, 2016. The Proposed Harassment Guidance cites to the August 29 guidance twice. Both are lengthy and worthy of careful review.

In both, the EEOC provides guidance on the issue of mistaken belief in employment law. For example, the EEOC states that “those whom an employer mistakenly believes have engaged in protected activity are protected from retaliation.” Also, the EEOC states that, when analyzing whether a single serious incident of harassment has occurred, harassment “may be heightened if the complainant reasonably believes that the harasser has authority over her, even if that belief is mistaken.” Similarly, the EEOC states that harassment “based on the perception that an individual has a particular protected characteristic, such as the belief that a person is a particular race, national origin, or religion, or has a particular sexual orientation, is covered by federal EEO law even if the perception is incorrect.”

Because a legal employment dispute might be analyzed (at least by the EEOC) based on what employers and employees believe (even if such belief is demonstrably incorrect), nobody should rest on the belief that truth will always prevail over perception.

Comment on the Proposed Harassment Guidance can be made here.

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