The EEOC Proposes Updated Workplace Harassment Guidance

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Patricia Tsipras

October 9, 2023

The U.S. Equal Employment Opportunity Commission (EEOC) recently released proposed enforcement guidance for workplace harassment.  The guidance does not have the force and effect of law.  It is intended only to provide clarity to the public regarding existing requirements under the law or EEOC policies.  The public will be able to comment on the guidance until November 1, 2023.

Several things prompted the EEOC to update its guidance, including, but not limited to, the #MeToo movement; the 2020 decision of the United States Supreme Court in Bostock v. Clayton County, Georgia, which held that Title VII of the Civil Rights Act protects gay and transgender workers from discrimination; and emerging issues, like virtual and online harassment.

We encourage employers to review this proposed guidance.  The guidance provides a great deal of insight regarding potential exposure, obligations, and defenses regarding harassment claims. 

The guidance also addresses systemic harassment (e.g., where all employees of a protected group are subjected to the same conduct) and provides links to other EEOC harassment-related resources, including Promising Practices for Preventing Harassment, a resource to assist employers in preventing and addressing harassment.

To explain how to evaluate whether harassment violates federal law, the guidance focuses on the three components of a harassment claim:

1. Was the conduct based on the individual’s legally protected characteristic(s) under the federal Equal Employment Opportunity (EEO) statutes?

Among many other examples, the EEOC’s guidance highlights the following (perhaps not so obvious) types of harassment based on legally protected characteristics:

• Sex-based harassment can include harassment based on a woman’s reproductive decisions, such as decisions about contraception or abortion.
• Sex-based harassment can include intentional and repeated use of a name or pronoun that is inconsistent with the individual’s gender identity.
• Sex-based harassment can include the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.
• Harassment based on the perception that an individual has a particular protected characteristic – for example, the belief that a person has a particular national origin or religion – is covered by federal EEO law even if the perception is incorrect.

The guidance also addresses causation – that is, whether the alleged harassment occurred because of the individual’s protected characteristic.  Here, the EEOC highlights several ways in which an individual can establish causation, including, but not limited to, evidence of facially-discriminatory conduct, evidence of stereotyping, the context of the alleged conduct, the timing of the alleged conduct, and evidence of how others (comparators) were treated.  One important example in the guidance (Example 8) addresses how a gay individual could establish a sex-based harassment claim when he overhears and is offended by derogatory comments in the workplace about gay men, even if those comments are not specifically targeted at him.

2. Did the harassing conduct result in discrimination with respect to a term, condition, or privilege of employment?

For an employer to be liable under an EEO statute for workplace harassment based on a protected characteristic, the harassment must affect a “term, condition, or privilege” of employment.  Among the many examples in this section are the following:

• Example 16 addresses the fact that an environment of sexual favoritism (e.g., supervisors engaged in publicly known consensual sexual relationships with subordinates, who then received promotions, awards, or other benefits) can create a hostile work environment for employees who find the conduct offensive.
• Example 22 addresses how an employee can establish a harassment claim if they are forced to participate in harassing behavior.
• Example 23 addresses how an employee can establish a sexual harassment claim based on conduct that occurs outside of the workplace but in a work-related context (like a company’s annual holiday party).

With respect to virtual and online harassment, the EEOC emphasizes how employers can be liable for harassing conduct if it is conveyed using work-related communications systems, accounts, or platforms, such as an employer’s email system, electronic bulletin board, instant message system, videoconferencing technology, intranet, public website, or official social media accounts.

The EEOC further notes that employers could be liable for harassing conduct that occurs in a non-work-related context if it impacts the workplace.  For example, if a Black employee is subjected to racist slurs and is physically assaulted by white coworkers who encounter him on a city street, the presence of those same coworkers in the Black employee’s workplace could result in a hostile work environment.

3. Does a basis exist for holding the employer liable for the conduct?

In cases alleging a hostile work environment, one or more standards of liability will apply.  The applicability of the standards depends on the relationship of the harasser to the employer and the nature of the hostile work environment.  The EEOC summarizes the applicable standards in its guidance.

The guidance also outlines best practices for anti-harassment policies, complaint policies, and training that could support an employer’s defenses.

You can comment on the proposed guidance here.

This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice.  Always consult an attorney with specific legal issues.