The Equal Employment Opportunity Commission (EEOC) released earlier this month updated proposed guidance on harassment in the workplace, largely based on developments in applicable case law and societal trends coming out of the #MeToo movement and the rise of social media. (The guidance was first released in 2017 but was never finalized.)
Expansions on Protected Classes
The proposed guidance expressly references the Supreme Court’s 2020 decision in Bostock v. Clayton County, which held that Title VII’s prohibition on employment discrimination “because of sex” encompassed discrimination on the basis of sexual orientation and gender identity. Based on this holding, the guidance provides that, under Title VII, employees are protected against discrimination based on sexual orientation and gender identity.
The proposed guidance provides examples of conduct that would constitute discrimination, including harassment where an individual does not present in a manner that would stereotypically be associated with that person’s gender; intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (also known as misgendering); and the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity. The proposed guidance also prohibits harassment based on pregnancy, childbirth and other related medical conditions, in addition to employees’ decisions pertaining to contraception, abortion, and breastfeeding.
Importantly, the updated guidance provides that “stereotyping” can also constitute harassment. Specifically, “[h]arassment is based on a protected characteristic if it is based on social or cultural expectations, be they positive, negative, or neutral, regarding how persons of a particular protected group usually act or appear.”
Virtual Harassment
The guidance emphasizes that any harassment that takes place on work channels, including via email, video call or phone call, constitutes workplace harassment. However, the guidance also makes clear that harassing conduct can take place in a non-work-related context, entirely outside of work channels, such as through personal social media accounts, and still constitute workplace harassment if it contributes to or results in a hostile work environment.
Complaint Process
The updated guidance addresses employer liability for harassment claims. Specifically, to avoid liability for a harassment claim, an employer must be able to demonstrate that it exercised “reasonable care” to prevent and promptly correct any harassment once it received notice of potential harassment. According to the guidance, “the employer will satisfy its obligations if, as a whole, its efforts are reasonable.” While the guidance does not expressly define “reasonable care,” it does discuss certain factors that may be relevant in assessing the “reasonableness” of an employer’s actions for purposes of determining liability for harassment claims.
Such factors include, but are not limited to, whether the employer has an anti-harassment policy; whether the policy is accessible and understandable to employees; and whether the policy requires supervisors to report harassment as soon as they have notice. Additionally, courts will typically consider whether an employer’s harassment policy provides multiple avenues for reporting harassment and whether the policy includes adequate anti-retaliation and confidentiality protections.
Key Takeaways
The proposed guidance is currently open for public input until Nov. 1, but we do not know yet when it will go into effect. However, considering these likely changes, employers can review their existing harassment policies to ensure that they are clearly stated, widely accessible and disseminated to all employees. Employers also can check to ensure they have multiple avenues for employees to report harassment and that their policies otherwise comport with the updated guidance. As the proposed guidance suggests, because some employees might not be comfortable reporting harassment in all instances, employers can also consider taking affirmative steps, such as conducting climate surveys among employees.
As always, employers are encouraged to consult with legal counsel to develop appropriate safeguards to prevent and respond to instances of harassment in the workplace.
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