On April 29, 2024, the EEOC published its “Enforcement Guidance on Harassment in the Workplace” (the “Guidance”). The Guidance updates and replaces the EEOC’s prior guidance documents, discusses the Supreme Court’s 2020 decision of Bostock v. Clayton County, Georgia in which the Court held that Title VII protected workers from discrimination based on their sexual orientation and/or gender identity, and addresses harassment in the context of virtual work.

The Guidance offers detailed examples of harassment across various protected criteria and addresses discrimination and retaliation. Notably, it clarifies that while off-duty offensive social media posts generally don't constitute harassment, they may if they impact the workplace, such as if such postings are directed at a particular employee or employer and are referenced at work. Regarding virtual work, the Guidance provides that harassing conduct can be conveyed using work-related communications systems, accounts, devices, or platforms, such as an employer’s email system, electronic bulletin board, instant message system, videoconferencing technology, intranet, public website, official social media accounts, or other equivalent services or technologies. The Guidance provides examples of harassment in virtual work, such as harassing comments made during a video meeting or in a group chat or inappropriate imagery that is visible in an employee’s workspace while the employee participates in a video meeting.

The Guidance addresses effective anti-harassment policies, complaint processes, and training programs. It emphasizes the importance of prompt and fair investigations and outlines appropriate remedial actions post-investigation. Moreover, systemic harassment is discussed.

The EEOC also issued several resources on anti-harassment, including the Summary of Key Provisions, Questions and Answers for Employees about workplace harassment, and a Small Business Fact Sheet. The Guidance also contains links to numerous other EEOC resources on the prevention of workplace harassment.

How Employers Should Prepare to Ensure Compliance:

• Ensure all personnel responsible for addressing workplace complaints and conducting investigations familiarize themselves with the Guidance and related EEOC materials.
• Review and update anti-harassment policies to reflect current standards.
• Ensure investigation practices align with the Guidance's requirements.
• Review and enhance anti-harassment training procedures to effectively prevent workplace harassment.