At the end of April 2024, the U.S. Equal Employment Opportunity Commission (EEOC) published its final guidance on harassment in the workplace, “Enforcement Guidance on Harassment in the Workplace” (“Guidance”). The Guidance is lengthy, with 387 footnotes, and it contains 77 examples and scenarios of various types of unlawful harassment according to the EEOC. The EEOC’s examples include harassing conduct based on race, color, religion, sex (including pregnancy, childbirth, or related medical conditions; sexual orientation; and gender identity), national origin, disability, age and genetic information.
Key Areas Covered by Guidance
In its Guidance, the EEOC noted the following:
- Since the EEOC’s last guidance on workplace harassment, important changes in the law have occurred, including (i) the U.S. Supreme Court’s decision in Bostock v. Clayton County holding that Title VII of the Civil Rights Act of 1964 protects employees against discrimination based on sexual orientation or gender identity and (ii) new emerging issues, such as online harassment.
- The Guidance “updates, consolidates, and replaces the agency’s five guidance documents issued between 1987 and 1999, and serves as a single, unified agency resource on EEOC-enforced workplace harassment law. It reflects the Commission’s consideration of the robust public input that it received after the guidance was posted for public comment in fall 2023.”
- The Guidance “reflects the EEOC’s commitment to protecting persons who are particularly vulnerable and persons from underserved communities from employment discrimination.” To that end, many of the scenarios in the Guidance include situations involving unlawful harassment of older workers, immigrant workers, and survivors of gender-based violence. The Guidance also notes that employees may be subject to unlawful harassment not only by coworkers or supervisors, but also by customers, contractors, and other third parties.
- The Guidance serves as a resource for employers and employees; for EEOC staff and the staff of other agencies that investigate, adjudicate, or litigate harassment claims; and for courts deciding harassment issues. Although much legal authority is cited, the Guidance itself does not have the force and effect of law and does not obviate the need to consider the facts of each case.
- The Guidance is aligned with the EEOC’s new Strategic Enforcement Plan for fiscal years 2024-2028, and “will help ensure that individuals understand their workplace rights and responsibilities.”
- The Guidance addresses the growth of virtual work environments and the increasing impact of digital technology and social media on harassment in the workplace.
- “Harassment based on sex under Title VII also includes non-sexual conduct based on sex, such as sex-based epithets; sexist comments (such as remarks that women do not belong in management or that men do not belong in the nursing profession); or facially sex-neutral offensive conduct motivated by sex (such as bullying directed toward employees of one sex).”
Sampling of Examples from Guidance. Some of the specific examples of harassment scenarios in the EEOC’s new Guidance include the following:
Example 9: Sex-Based Harassment. Aiko, a construction worker on a road crew, is subjected to sex-based epithets and other demeaning sex-based language by her supervisor, such as “sandwich-maker” and “baby.” This supervisor also disparages women’s participation in the construction industry, for example by stating that road construction is “a man’s job.” Based on these facts, the supervisor’s harassing conduct toward Aiko is based on sex.
The EEOC noted that sex-based “harassment includes harassment based on sexual orientation or gender identity, including how that identity is expressed…. Harassing conduct based on sexual orientation or gender identity includes epithets regarding sexual orientation or gender identity; physical assault due to sexual orientation or gender identity; outing (disclosure of an individual’s sexual orientation or gender identity without permission); harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex; repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.”
Example 17: Disability-Based Harassment. Abdul, a financial advisor at a private wealth management firm, has a pronounced stutter resulting from anxiety. Abdul’s coworkers mockingly imitate his stutter and ask Abdul to repeat himself, even though the coworkers understood what Abdul said. Based on these facts, the coworkers’ harassing conduct toward Abdul is based on disability.
Example 18: Harassment Based on Disability Accommodation. Charlie, a seasonal cashier at a garden supply store, has psoriatic arthritis, which affects his knees and ankles and makes standing for prolonged periods of time painful. Charlie’s employer has a rule that prohibits cashiers from using fatigue standing mats or chairs while at the cash register, but grants Charlie a reasonable accommodation under the ADA to use a mat or chair as needed. Charlie’s coworkers berate him for getting “special treatment.” They also hide Charlie’s mat and chair, which prevents Charlie from starting his work on time, because it’s “unfair” that he gets to be “more comfortable” than them. Based on these facts, the coworkers’ harassing conduct toward Charlie is based on disability (receipt of a reasonable accommodation).
Guidance Commentary on Investigations
The Guidance also addresses the importance of prompt and adequate investigations, stating:
An investigation is prompt if it is conducted reasonably soon after the employee complains, or the employer otherwise has notice of possible harassment. Clearly, an employer that opens an investigation into a complaint one day after it is made has acted promptly. By contrast, an employer that waits two months to open an investigation, absent any mitigating facts, very likely has not acted promptly. In many instances, what is “reasonably soon” is fact-sensitive and depends on such considerations as the nature and severity of the alleged harassment and the reasons for delay. For example, when faced with allegations of physical touching, an employer that, without explanation, does nothing for two weeks likely has not acted promptly.
An investigation is adequate if it is sufficiently thorough to “arrive at a reasonably fair estimate of truth.” The investigation need not entail a trial-type investigation, but it should be conducted by an impartial party and seek information about the conduct from all parties involved. The alleged harasser therefore should not have supervisory authority over the individual who conducts the investigation and should not have any direct or indirect control over the investigation. If there are conflicting versions of relevant events, it may be necessary for the investigator to make credibility assessments to determine whether the alleged harassment in fact occurred. Accordingly, whoever conducts the investigation should be well-trained in the skills required for interviewing witnesses and evaluating credibility.
In addition, the EEOC’s examples address an employer’s investigative responsibilities:
Example 72: Employer Failed to Conduct Adequate Investigation. George, a construction worker, repeatedly complains to the superintendent that he is being harassed because of his disability by Phil, a coworker. After about two weeks, the superintendent asks a friend of his to conduct an investigation, even though this individual is not familiar with EEO law and has no experience conducting harassment investigations. The investigator meets with George and Phil individually for about ten minutes, and asks only a few perfunctory questions. From these interviews, the investigator issues a single-page memorandum concluding, without further explanation, that there is no basis for finding that George was harassed. Based on these facts, the employer has not conducted an adequate investigation.”
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