On April 29, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) issued final guidance on workplace harassment subject to federal employment discrimination laws. Aptly titled, “Enforcement Guidance on Harassment in the Workplace” (915.064), this guidance addresses how harassment based on race, color, religion, sex, national origin, age, disability, or genetic information is defined under EEOC-enforced statutes and provides the analysis for determining whether employer liability is established. The Commission’s press release announcing the publication of this final guidance can be found at this link.
The EEOC initially published proposed guidance on October 2, 2023 and invited the public to comment. Our blog post covering this development can be found at this link. The Commission received approximately 38,000 comments during the course of the comment period, which closed on November 1, 2023.
Recognizing significant changes in the legal, technological, and cultural landscape since the Commission last issued guidance on workplace harassment, the new guidance “updates, consolidates, and replaces the agency’s five guidance documents issued between 1987 and 1999, and serves as a single, unified agency resource on EEOC-enforced workplace harassment law.”
A key issue addressed by the final guidance relates to proliferation of technology in the private lives of the workforce and its potential impact on the workplace. For example, the guidance states that, while employers “generally are not responsible for conduct that occurs in a non-work-related context,” employers “may be liable when the conduct has consequences in the workplace and therefore contributes to a hostile work environment.” Even if it does not occur in a work-related context, “conduct that can affect the terms and conditions of employment” includes “electronic communications using private phones, computers, or social media accounts, if it impacts the workplace.”
The final guidance also examines sexual orientation and gender identity. The guidance unequivocally considers sex-based harassment to include “harassment based on sexual orientation or gender identity, including how that identity is expressed” and gives examples of harassing conduct – e.g., the use of epithets regarding sexual orientation or gender identity; disclosure of an individual’s sexual orientation or gender identity without permission; repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity; or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.
The guidance offers detailed definitions and descriptions of key terms and concepts, and also provides dozens of examples and hypothetical fact patterns to assist the reader in navigating a variety of nuanced issues that may exist in the work environment. In addition, the final guidance also addresses systemic harassment and provides links to EEOC harassment-related resources. The Commission has released a concise summary of key provisions of the enforcement guidance, intending to provide a broad overview of the document and issues related to workplace harassment.
Notably, EEOC Commissioner Andrea R. Lucas voted to disapprove the final guidance, for reasons including “the guidance’s assault on women’s sex-based privacy and safety rights at work, as well as on speech and belief rights.” Commissioner Lucas’ statement addressing her vote can be read here.
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