EEOC enforcement guidance; ADEA waiver of benefit; individual liability for Title VII claims. (Age Discrimination in Employment Act) (Federal Regulations Update)

EEOC ISSUES ENFORCEMENT GUIDANCE ON HARRIS V. FORKLIFT SYSTEMS, INC., AND HOSTILE ENVIRONMENT CLAIMS

On March 8, 1994, the Equal Employment Opportunity Commission (EEOC) issued new enforcement guidance on handling "hostile environment" sexual harassment claims. The EEOC directive is an outgrowth of the Supreme Court's decision in Harris v. Forklift Systems, Inc., 114 S. Ct. 367 (1993), in which the Supreme Court held that an employee need not prove psychological injury as a result of sexual harassment in order to prevail in a Title VII action. The Court held that, if sexual harassment in the workplace is sufficiently severe to alter the employee's working conditions, a hostile-environment sexual-harassment claim is established, and that the totality of circumstances examined should include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." (See Harris, 114 S. Ct. at 371.)

The EEOC guidance describes the Court's opinion in Harris as consistent with the commission's existing policy on hostile environment harassment, which already embraced a "totality of circumstances" approach. In processing future charges, the guidance instructs investigators to continue to "look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred" in evaluating whether the conduct was welcome and whether it rises to the level of a violation. The guidance stresses that an employee need not show any single factor in order to prevail on a hostile environment claim.

In Harris, the Supreme Court applied a "reasonable person" standard to judge sexual harassment, a standard earlier enunciated by the commission. EEOC's position, however, is that in applying the reasonable person standard, the hypothetical reasonable person is one with the perspective of the victim. The Court in Harris did not comment on this aspect of EEOC's interpretation. The guidance makes clear that EEOC continues to adhere to, in effect, a "reasonable …