The U.S. Equal Employment Opportunity Commission (EEOC) issued the final version of its new enforcement guidance on workplace harassment on April 29, 2024. The new guidance includes updates aimed at addressing workplace harassment in virtual or hybrid work environments and workplace harassment on the basis of sexual orientation, gender identity and pregnancy.
The New Guidance
The new guidance is the culmination of the EEOC's seven-year attempt to modernize its workplace harassment enforcement guidance and supersedes previous guidance published in the 1980s and 1990s. The guidance details the EEOC's position on what qualifies as a protected characteristic and identifies workplace behaviors that the EEOC believes rise to the level of harassment. Because the EEOC and other agencies rely on the enforcement guidance when investigating or litigating harassment claims, this guidance is an important tool for employers seeking to implement and enforce effective anti-harassment policies.
An initial draft of the guidance was proposed in 2017 but was not promulgated. The EEOC proposed an updated version in September 2023 that included new provisions incorporating recent cultural and legal developments such as the widespread rise in virtual or remote work environments, as well as new legal protections based on sexual orientation and gender identity. The guidance provides that virtual harassment may occur through work-related communication systems, accounts, devices or platforms. The guidance includes numerous specific examples of unlawful harassment, explaining that harassment occurs when racist, sexist or ableist comments are typed in a work group chat or made during a video conference. Those examples further demonstrate that offensive comments or imagery made or posted during virtual work meetings or calls may rise to the level of harassment when those comments or images are related to a protected characteristic.
The new guidance also incorporates principals set forth by the U.S. Supreme Court's 2020 decision in Bostock v. Clayton County, Georgia, in which the Court held that sex discrimination, which is prohibited by Title VII of the Civil Rights Act of 1964, includes discrimination on the basis of sexual orientation and gender identity. The updated guidance notes several instances of potential harassment based on sexual orientation and gender identity, including outing an individual or repeated and intentional misgendering (the use of a pronoun or name to refer to a worker that does not comport with the impacted worker's gender identity).
The updated enforcement guidance also provides that harassment may include comments or conduct aimed at an individual who does not present in a manner that would stereotypically be associated with that person's sex, as well as the denial of access to a bathroom consistent with a worker's gender identity.
The new guidance also addresses harassment on the basis of pregnancy, including harassment related to breastfeeding, morning sickness, contraception and the decision to obtain – or not obtain – an abortion.
Moving Forward
Approved by a 3-2 vote along party lines, the new guidance is likely to face legal challenges, particularly as it relates to free speech and religious-based rights that may interplay with the new guidelines published by the EEOC. Indeed, in November 2023, more than 20 state attorneys general jointly submitted a letter to the EEOC signaling their intention to challenge the proposed guidance based on religious discrimination and other grounds. Additional challenges may be on the horizon.
Barring judicial intervention, the new guidance is effective immediately and communicates the EEOC's position regarding conduct and behaviors the EEOC believes constitute unlawful harassment. Moving forward, employers should refer to the EEOC's new guidance to help ensure that their workplace harassment policies and anti-harassment initiatives are current.
