On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) issued its final version of the Enforcement Guidance on Workplace Harassment (the Guidance), to include developments “answering the call” of the #MeToo movement, the landmark Supreme Court decision in Bostock v. Clayton County, Georgia (holding Title VII protections include sexual orientation and gender identity) and the realities of digital technology, social media, and harassment and the remote workplace. Nearly 38,000 comments were submitted before the November 2023 public input deadline. The Guidance was approved along party lines by a 3-2 vote of the EEOC’s Commissioners and is effective immediately.
Broadly speaking, the Guidance sets forth the myriad ways harassment arises in the workplace, including through in-person or virtual behavior. While the final Guidance is very similar in substance to the draft version issued in September 2023, the EEOC included an abundant number of examples of behavior, (more than 70), to illustrate unlawful workplace harassment in a multitude of scenarios. Most of the examples illustrate actionable behavior with a handful showing behavior that may be unpleasant but is not unlawful. Reading the Summary of Key Provisions is a good way to go about digesting the content without reading the nearly 200-page Guidance.
Of note, workplace harassment (whether verbal, physical, visual, sexual, retaliatory and/or online) can be triggered by:
- Mimicking a person’s disability;
- Mocking a person’s accent;
- Intrusive questions about a person’s sexual orientation, gender identity, gender transition, or intimate body parts;
- Outing or repeatedly misgendering a co-worker;
- Denying an employee access to a bathroom, locker room or other facility that is consistent with their gender identity;
- Racist imagery visible in an employee’s remote workspace during a video meeting;
- Sexual comments made during a video meeting about a bed being near the employee in the video meeting;
- Ridiculing a male employee who is recovering from a vasectomy with name calling including “gelding” and “eunuch”;
- Intersectional harassment (harassment based on the combination of at least two protected characteristics) such as comments made to a woman who is fanning herself that refer to her being menopausal and mocking that status.
- Intraclass harassment (misconduct occurring when a harasser targets another because of a share protected class) such as an older worker making ageist remarks at a colleague roughly the same age or older or a female employee making insensitive comments to another female co-worker because she does not want children.
The Guidance explains that harassment based on a mistaken assumption of a person’s protected status can be actionable even if the perception is incorrect, such as verbal harassment, (name calling), of a heterosexual man based on the erroneous assumption he is gay. Moreover, an employer may not defeat a claim of workplace harassment simply because the victim continues to perform well, despite the harassment, so long as the offensive conduct would otherwise impact a reasonable person in the victim’s situation.
The Guidance includes a stray example of a single incident that does not rise to the level of hostile work environment harassment (a single crude comment made from a male employee to a female employee about her menstrual cycle) and a long list of those that do:
- Sexual assault;
- Sexual touching of an intimate body part;
- Physical violence or the threat of physical violence;
- Display of symbols of violence or hatred (swastika, KKK hood, noose);
- Use of denigrating animal imagery (e.g., monkey);
- A threat to deny job benefits for rejecting sexual advances;
- Use of the “n word” by a supervisor in the presence of a Black subordinate.
More than ever, employers remain responsible for preventing and promptly addressing harassment in the workplace, including with training protocols for employees and management, effective reporting processes and conducting prompt and thorough investigations into workplace harassment complaints. Proactive prevention efforts, thorough and unbiased investigations, prompt corrective action, and fostering a workplace culture promoting respect, dignity, tolerance and inclusion continue to be primary and necessary tools for harassment-free workplaces and successfully defending against claims to the contrary.
