On April 29, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) published the final version of its enforcement guidance on harassment in the workplace. The updated guidance is effective immediately, and consolidates and supersedes the EEOC’s five guidance documents issued in the 1980s and 1990s. In addition to the final guidance, the EEOC released a summary of its key provisions, questions and answers on workplace harassment for employees, and a fact sheet for small businesses.
The EEOC intends for the guidance to “help people feel safe on the job and assist employers in creating respectful workplaces.”[1] With this goal in mind, the guidance focuses on the legal standards of employer liability applicable to harassment claims under the federal employment discrimination laws enforced by the EEOC. The guidance specifically details the EEOC’s position on what qualifies as a protected characteristic and describes conduct in the workplace that it believes rises to the level of unlawful harassment. Moreover, it provides over seventy hypothetical examples of unlawful harassment.
Most notably, the guidance addresses new developments in employment law since its last publication. For example, it incorporates standards set forth by the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, Georgia,[2] 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 guidance also incorporates workplace protections for “pregnancy, childbirth, or related medical conditions,” including “lactation” in accordance with the Pregnant Workers Fairness Act (PWFA) of 2023 and Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) of 2022. In addition, the guidance addresses harassment issues in the context of the modern workplace such as in hybrid and remote workplaces, and with respect to the use of electronic communications and social media.
Moving forward, employers should refer to the new guidance to assist in ensuring that their workplace harassment policies are current. The guidance also provides employers with insight into the EEOC’s process and considerations when investigating or litigating harassment claims. However, based on the fact that the attorneys general of over twenty states jointly submitted a letter to the EEOC signaling their intention to challenge the proposed guidance that was published in November 2023, we expect litigation in the future.
[1] Press Release, U.S. Equal Employment Opportunity Commission, EEOC Releases Workplace Guidance to Prevent Harassment (April 29, 2024), https://www.eeoc.gov/newsroom/eeoc-releases-workplace-guidance-prevent-harassment.
[2] 590 U.S. 644, 140 S. Ct. 1731, 207 L. Ed. 2d 218 (2020).
