• The EEOC’s new Guidance states that Title VII prohibits harassment based on gender identity, including intentional misgendering and restrictions on bathroom access.
• The Guidance also focuses on technology’s role in harassment, explaining that Title VII prohibits harassment in virtual work environments.
• The Guidance takes effect immediately.

On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) issued its Enforcement Guidance on Harassment in the Workplace (the “Guidance”). The Guidance sets forth the EEOC’s position on harassment that constitutes unlawful discrimination under Title VII of the Civil Rights Act (“Title VII”), which is one of several statutes that the EEOC enforces. The Guidance, which was approved by a majority vote of the Commission, is the EEOC’s first update to its anti-harassment guidelines since 1999 and provides the EEOC’s views of harassment-related issues facing workplaces in the 21st century.

The Reasons for the New Guidance

The Guidance is intended to incorporate both practical and legal developments from the past 25 years. Practically speaking, the internet has transformed the workplace in the past quarter-century. Some technological developments—like email and videoconferencing—have become integral to how businesses operate. Even if not formally sanctioned or adopted by an employer, technology, like online forums and AI technology, can interfere in workplace dynamics. The Guidance attempts to account for these shifts.

Additionally, the Supreme Court’s 2020 decision in Bostock v. Clayton County, in which the Court held that Title VII’s ban on discrimination based on sex also prohibits discrimination based on gender identity and sexual orientation, dramatically altered the Title VII landscape. After the Court issued the Bostock decision, the EEOC convened a bipartisan Select Task Force on Harassment in the Workplace and issued a report detailing its findings and recommendations. This Guidance applies Bostock to the harassment context, explaining that harassment based on gender identity or sexual orientation constitutes unlawful sexual harassment under Title VII.

What Constitutes Harassment Under the New Guidance

Through the Guidance, the Commission addresses the variety of forms harassment can take in the 21st century workplace. Consistent with decades of precedent, harassment violates Title VII only if it is based on a protected characteristic and affects a term, condition, or privilege of employment. Conduct that is severe or pervasive enough to establish a hostile work environment is unlawful harassment. Over the course of 70 examples, the Guidance provides the Commission’s position regarding what constitutes protected classes and harassing conduct. The Commission’s more notable stances include the following:

• Sex-based harassment includes harassment based on sexual identity and sexual orientation. Asking “intrusive questions about a person’s sexual orientation, gender identity, gender transition, or intimate body parts,” for example, can constitute harassment. Harassing conduct also includes “repeated and intentional” misgendering or denial of access to a bathroom consistent with an employee’s gender identity.
• Unlawful harassment based on pregnancy or childbirth may include issues such as lactation and decisions regarding contraception and abortion. Harassing conduct may include, for example, teasing comments about a man’s decision to get a vasectomy or conduct interfering with an employee’s use of a lactation room.
• Harassment based on “color,” an individual’s pigmentation, complexion, or skin tone, is prohibited under Title VII.
• Conduct over video meetings can contribute to a hostile work environment, including not only comments made during a video meeting but also offensive “imagery that is visible in an employee’s workspace while the employee participates in a video meeting.”
• Conduct on non-work-related platforms, such as social media accounts, may contribute to creating a hostile work environment, but are generally not enough, standing alone, particularly if they do not target the employer or specific employees.
• A hostile work environment may be established by a single incident of harassment, including the display of symbols of violence or hatred, use of denigrating animal imagery, and the use of racial epithets.
• Title VII prohibits “intraclass harassment,” meaning harassment based on a protected characteristic but conducted by a member of the same protected class. One illustration the Guidance provides, for example, is a female employee’s belittling comments to a female coworker for either having children (“shouldn’t mothers stay at home with their kids?”) or not having children (“it is sad to watch you choose a career over a family”). This conduct constitutes sex-based harassment even though all parties are women.

The Guidance takes effect immediately, although it can be expected to face legal challenges. The EEOC published draft guidance in October 2, 2023 and received over 38,000 public comments in response. Some of those responses included letters explicitly threatening litigation should the guidance be finalized as written. The Guidance appears to anticipate some of these potential challenges, such as challenges based on religious discrimination grounds, noting that while sincerely held religious beliefs should be protected, employers are not required to accommodate religious expression “that creates, or reasonably threatens to create, a hostile work environment.”

Still, despite these expected legal challenges, employers should reevaluate their harassment policies in light of the new Guidance. The Guidance itself encourages employers to have clear harassment policies, implement a safe and effective system for employees to report harassment, and provide recurring training to all employees about its policies.