The EEOC’s Enforcement Guidance on Harassment in the Workplace

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Patricia Tsipras

May 23, 2024

Another Update:  On January 22, 2026, the EEOC fully rescinded its Enforcement Guidance on Harassment in the Workplace. Read our article here about the rescission.

Update:  On May 15, 2025, a Texas federal court held that the EEOC’s expansion of the definition of “sex” in its Enforcement Guidance on Harassment in the Workplace was contrary to law.  See Texas, et al. v. EEOC, 2:24-CV-173 (N.D. Tex. May 15, 2025).  The court, therefore, vacated portions of the guidance nationwide.

The EEOC cannot rescind or modify the Enforcement Guidance on Harassment in the Workplace at this time because it lacks a quorum to vote on such changes.  To assist the public following the federal court decision, the EEOC has labeled and shaded the vacated portions of the guidance on the agency’s website.

The U.S. Equal Employment Opportunity Commission (EEOC) recently released Enforcement Guidance on Harassment in the Workplace.

All of the laws that the EEOC enforces prohibit workplace harassment that is based on a protected characteristic – race, color, religion, sex (including sexual orientation; gender identity; and pregnancy, childbirth, or related medical conditions), national origin, disability, age (40 or older) and genetic information.  To violate the law, the harassment must involve a change in the victim’s employment or create a hostile work environment.

The Guidance provides 77 examples of workplace harassment and makes the following key points:

• A person can be the victim of harassment even when the harasser is wrong about the victim’s protected characteristic.
• Harassment based on a person’s association with someone who does not share the same protected characteristic as the victim also may violate the law.
• A person can be harassed based on more than one protected characteristic. It is sometimes called intersectional harassment.
• Harassment can occur when the harasser shares the same protected characteristic as the victim.
• Behavior does not have to be sexual in nature to be considered sex-based harassment. The behavior simply needs to be based on the victim’s sex.
• A hostile work environment exists when harassment is so severe OR pervasive that a reasonable person in the victim’s position would find the situation abusive. The victim does not have to show that the harassment led to a change in employment or made them perform worse.
• Harassment by any person in the physical or virtual workplace, including coworkers, customers, and clients, can violate the law.
• Employers should try to prevent harassment by having an anti-harassment policy, having a procedure to report harassment, providing recurring anti-harassment training, and taking steps to ensure that the policy is being followed and the complaint process is working. The Guidance discusses anti-harassment policies, complaint procedures, and anti-harassment training in detail and provides resources for employers.
• Employers will be deemed to know about potential harassment – and, therefore, responsible for stopping it – when someone complains; an owner, manager, or supervisor witnesses the harassing conduct; or the harassing conduct is so open and obvious that an owner, manager, or supervisor reasonably should have known about it.
• In response to a harassment complaint, employers should conduct an investigation and, if necessary, take appropriate remedial action.

Seek counsel when faced with a harassment complaint.  The attorneys at Rubin Fortunato can help.

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.