The Equal Employment Opportunity Commission (EEOC) issued a crucial set of guidelines on workplace harassment on April 29, 2024, by publishing the "Enforcement Guidance on Harassment in the Workplace". These guidelines are designed to tackle various forms of harassment and establish clear criteria for identifying a hostile work environment.

The EEOC guidelines cover racial harassment, national origin harassment, disability harassment, and harassment based on perceived protected characteristics or associations with certain groups. The guidelines stress that even seemingly harmless comments can be considered harassment, depending on the context or their link to discriminatory behavior.

This guidance is the first major overhaul of the guidance in 25 years and includes updates based on the landmark Supreme Court case, Bostock v. Clayton Cnty., 590 U.S. 644 (2020), which held Title VII’s prohibition on employment discrimination “because of sex” encompasses discrimination based on sexual orientation and gender identity.

Key elements in establishing a hostile work environment include the frequency and severity of the behavior, its impact on work performance and psychological well-being, and the presence of a power dynamic between the harasser and victim. The guidance clarifies that a complainant does not need to demonstrate harm to their work performance or psychological state to prove a hostile environment. Additionally, it highlights instances where harassment may be heightened, such as when the victim mistakenly believes the harasser holds authority over them.

The guidelines also provide specific examples of conduct that may constitute a hostile environment, including sexual assault, the use of derogatory language by a supervisor, and extensive sexual favoritism. To prove a hostile environment, the plaintiff must show unwelcome conduct that is objectively and subjectively hostile, considering the perspective of a reasonable person from the complainant's protected class.

With respect to supervisor liability, the guidelines introduce the concept of 'apparent authority.' This means that even if someone lacks tangible employment action authority, they may still be considered a supervisor if the harassed employee reasonably believes they hold such power. This is a significant clarification that can have far-reaching implications in workplace harassment cases.

Furthermore, the EEOC's recent guidelines address various issues, including expanded safeguards for LGBTQ+ employees, including pregnancy-related matters under Title VII, clarity on safeguarding religious expression, recognition of virtual harassment, and guidance for employers on addressing potential legal challenges.

In anticipation of legal challenges, employers are encouraged to review their harassment policies, maintain a zero-tolerance stance towards harassment, train managers in addressing harassment issues, and stay updated on legal developments to uphold Title VII employee protections.