On April 29, 2024, the U.S. Equal Employment Opportunity Commission (“EEOC”) released long-awaited Enforcement Guidance on Harassment in the Workplace, No. 915.064 (the “Guidance"). This update is the first of its kind in 30 years and substantially mirrors the proposed guidance that the EEOC issued in October 2023. The Guidance addresses a number of prominent issues and changes, and employers will need to review and amend workplace policies and procedures to incorporate these changes. The Guidance sets out the EEOC’s position on such questions as the tension between pronoun usage and religious practice, abortion in the context of sex harassment, and social media as the basis for a harassment claim.

While the Guidance does not create new law and is not necessarily binding on courts, it can form the basis for the EEOC’s investigation of Charges of Discrimination and reported workplace issues. Moreover, its release presents a vital need for employers to revisit and review their harassment-prevention policies and procedures and to update their antiharassment training. Employers should also check in with human resources, employee relations, and any other function that may serve as an intake point for employee harassment complaints to ensure that all complaints are received, investigated, and resolved in a prompt and timely manner.

Highlights of the Expanded Subjects of the Guidance include the following key areas:

1. Emphasis on pregnancy-related sexual harassment -- The EEOC clarifies that “sexual harassment” includes harassment based on decisions related to pregnancy, such as lactation, contraceptive choices, and the decision to have, or not to have, an abortion. This Guidance is particularly relevant given the EEOC’s recent release of rules regarding the Pregnant Workers Fairness Act, which require employers to accommodate applicants and workers who need time off or other workplace modifications for a pregnancy-related procedure or recovery.
2. Recognition of harassment in virtual work environments -- It has always been true that harassment can occur online or via email, instant message, “chat” platforms, or video conference. But the Guidance’s emphasis on this point recognizes the realities of a post-pandemic landscape, which still includes remote and/or virtual work environments for many employers.
3. Reaffirmed protections for LGBTQ+ employees -- The EEOC has reiterated its position that harassment of LGBTQ+ workers – particularly transgender employees – may violate Title VII, following the Supreme Court’s landmark holding in Bostock v. Clayton County that sexual-orientation discrimination and gender identity/transgender discrimination are forms of “sex” discrimination under that law. The EEOC’s examples of prohibited conduct include comments suggesting that a person does not comport with stereotypical behaviors associated with their biological sex, asking unwelcome or invasive questions about a person’s sex or sex life, misgendering, and denying an employee access to a bathroom consistent with their gender identity.
4. Balancing of religious protections -- The Guidance notes that Title VII’s protections include a prohibition against unlawful harassment on the basis of religion. The Guidance makes clear, however, that employers need not accommodate a religious practice in the workplace where doing so would create, or reasonably threatens to create, a hostile work environment for another employee. Here, the Guidance grapples with the “interplay between an employer’s Title VII obligation to provide a reasonable accommodation for an employee’s sincerely held religious beliefs, practices, and observances and its obligation to prevent and correct unlawful harassment in the workplace.” The Guidance specifically references Kluge v. Brownsburg Community School Corp., 64 F.4th 861 (7th Cir. 2023), in which a school teacher was terminated for failing to address transgender students by their preferred pronouns, citing his religious beliefs and practices as the reason he could not do so. The case is pending on remand to the Southern District of Indiana, and the EEOC’s Guidance states that the Commission will “give the final decision appropriate consideration when considering charges alleging these issues.”

Expanded Examples of Harassment Provided in the Guidance and Materials

With the final Guidance, the EEOC issued several educational resources, including a “Summary of Key Provisions” document, FAQs for employees, and a fact sheet for small businesses. We have these sources available if you would like to review them. Of particular note, these resources each contain the EEOC’s stated examples of unlawful harassment to include employees’ status beyond sexual or gender, but to highlight the protections of Title VII regarding age, disability, pregnancy, race, ethnicity, and religion. In the Guidance, the EEOC states that harassment can take many forms, including:

• saying or writing an ethnic, racial, or sex-based slur;
• forwarding an offensive or derogatory “joke” email;
• displaying offensive material (such as a noose, swastika, or other hate symbols, or offensive cartoons, photographs, or graffiti);
• threatening or intimidating a person because of the person’s religious beliefs or lack of religious beliefs;
• sharing pornography or sexually demeaning depictions of people, including AI-generated and deepfake images and videos;
• making comments based on stereotypes about older workers;
• mimicking a person’s disability;
• mocking a person’s accent;
• making fun of a person’s religious garments, jewelry, or displays;
• asking intrusive questions about a person’s sexual orientation, gender identity, gender transition, or intimate body parts;
• groping, touching, or otherwise physically assaulting a person;
• making sexualized gestures or comments, even when this behavior is not motivated by a desire to have sex with the victim; and
• threatening a person’s job or offering preferential treatment in exchange for sexual favors.

This expanded list of examples makes many employers’ workplace harassment policies out of date because historically the examples of prohibited conduct keyed on only sexual harassment. This heightens the need for employers to review and update antiharassment policies in the workplace.

The Guidance Details Expected Employer Policies and Procedures for Investigations

Another key part of the Guidance is its more defined approach to the investigation of harassment reports with the EEOC setting out details on what it considers to be the required aspects of an investigation protocol. In this regard, the EEOC states that an “employer should conduct a prompt, impartial, and thorough investigation to determine whether harassing conduct occurred and take appropriate action to promote a safe, fair, and productive work environment. What steps to take, what evidence to gather, and who to interview will depend on the particular facts and circumstances of the allegations.” The Guidance designates that, regardless of the size and scope of the investigation, some indications of an effective investigation may include:

• The employer starts investigating reasonably soon after learning about potential harassment;
• The assigned investigator is trained on harassment law and how to investigate harassment allegations;
• The assigned investigator is impartial and unbiased;
• There is an investigative plan, and that plan is followed;
• Steps are taken to make sure neither the complainant nor the alleged harasser can influence the investigation, the investigator, or potential witnesses;
• Testimony, evidence, and other helpful information is gathered from relevant witnesses and other sources, such as video cameras, company-provided cell phones, and email servers;
• Both the complainant and the alleged harasser are updated on the status of the investigation, as appropriate;
• Both the complainant and the alleged harasser are informed about the employer’s conclusions and any actions it plans to take as a result of the investigation; and
• Records of harassment complaints, investigations, evidence, and conclusions are preserved.

Because many employers have policies and procedures regarding investigations that predate these changes, there is the need to evaluate and potentially overhaul such to include these stated guideposts from the EEOC’s Guidance.

Legal Challenges to the Guidance and Best Practice Tips to Employers

A group of 20 states’ attorneys general (including Texas and Oklahoma) submitted comments to the EEOC’s Proposed Guidance asserting that it violated Title VII of the Civil Rights Act of 1964 by going beyond the protections and prohibitions of that law, and a similar attorneys general coalition sued the EEOC on April 25 challenging its stance on abortion in its Pregnant Workers Fairness Act rules. We expect that the EEOC’s Final Guidance will be challenged as well.

Despite the legal challenges to the Guidance, the EEOC will use it as a basis to review Charges of Discrimination and to decide which Charges to investigate beyond receiving a Position Statement from the employer. We also expect the EEOC to use the provisions of the Guidance to make its findings on whether there is evidence of an unlawful decision or policy of discrimination, harassment, or retaliation in the workplace. Accordingly, we strongly recommend that employers review and amend their workplace antiharassment policies and investigation procedures taking into account the applicable provisions for the respective employer’s workplace and workforce.

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