Executive Summary: On March 29, 2024, the EEOC announced new guidance addressing harassment in the workplace, which goes into effect immediately. This guidance consolidates the EEOC’s previous guidance and incorporates new topics reflecting recent changes in the law. For instance, the Guidance enumerates new categories under “sex-based” harassment, including harassment based upon pregnancy, childbirth, or related medical conditions, including the choice to have or not have an abortion and to use or not use contraception, sexual orientation, and gender identity. Although an earlier attempt at issuing new guidance stalled during the Trump administration, this guidance shows a continued effort to "reflect[] important developments affirming that individuals are protected against harassment on the basis of sexual orientation and gender identity."
Highlights of the New Guidance
The guidance makes clear that the following conduct can form the basis of a harassment claim:
- Intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering);
- Denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity;
- Disclosing an individual’s sexual orientation or gender identity without permission;
- Insulting, criticizing, and demeaning behavior towards a person based on their pregnancy or pregnancy-related medical condition, such as lactation or morning sickness;
- Insulting, criticizing, demeaning, or changing the working conditions of an employee based on their decision to use or not use contraception, including abortion.
The guidance also addresses two concepts that may be unfamiliar to employers—retaliatory harassment and intraclass and intersectional harassment. Retaliatory harassment refers to harassment that occurs when an individual experiences harassment as a result of engaging in protected activity. The guidance also discusses intraclass and intersectional harassment, providing illustrative examples of each. According to the guidance, intraclass age-based harassment would occur when a 52-year-old supervisor directs derogatory comments toward a 65-year-old employee, even though they both are in the protected age category as employees over the age of forty. The guidance finds that intersectional harassment occurs where individuals are targeted based on their membership in more than one protected category, using the example of a male manager making comments to a 51-year-old female worker that she was having a “menopausal moment.”
This new guidance, the first in 25 years, also incorporates the realities of the modern workforce by detailing how harassment can occur between remote workers and online. For instance, conduct is considered to be within the work environment if “it is conveyed using work-related communications systems, accounts, devices, or platforms,” including official social media accounts, video conferencing technology, and instant messaging system. Employers can also be liable if the conduct occurs in a non-work environment but has an impact on the workplace. This includes posts on social media if the victim learns of the post through a coworker, or if the post otherwise impacts the victim’s workplace.
This guidance does not come without its criticisms, and will likely face legal challenges based on, among other grounds, religious discrimination grounds and concerns that it exceeds the scope of the Supreme Court’s decision in Bostock v. Clayton County, 590 U.S. 644 (2020). When the Commission unveiled a draft in September 2023, a coalition of 20 red state attorneys general argued that the guidance illegally stretches the definition of “sex-based harassment” and that they were ready to take “appropriate legal action” if the EEOC did not address its concerns in the final version. However, employers should not act in reliance on any of the challenges succeeding.
The Bottom Line
As this guidance shows the EEOC’s position on harassment claims, employers should familiarize themselves with the new Guidance and institute the appropriate policies to reflect the robust changes. Whether harassing behavior violates the law will continue to be addressed on a case-by-case basis, but there are proactive steps that employers can take to mitigate the risk under these new guidelines. Employers should review their current policies, ensure that managers are familiar with the new guidance, and reach out to counsel when they learn of potential violations in the workplace.
