- EEOC updated its enforcement guidance on harassment in the workplace.
- The new guidance replaces five prior guidance documents on workplace harassment, and covers harassment based on race, color, religion, sex (including pregnancy, childbirth or related medical conditions; sexual orientation; and gender identity), national origin, disability, age (40 or older) and genetic information.
- EEOC claims updates were needed to account for Supreme Court’s Bostock decision and other emerging issues.
- Prior efforts to update guidance stalled.
On April 29, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) released a long-anticipated update to its enforcement guidance on harassment in the workplace. The update comes almost 25 years after EEOC last published guidance on this topic. In addition to the guidance itself, the agency simultaneously issued a summary of its key provisions, FAQs on workplace harassment for employees, and a fact sheet for small businesses.
The guidance focuses on legal analysis of harassment and the standards for imposing employer liability for harassment based on the statutes enforced by the EEOC. Thus, the guidance is intended to “protect covered employees from harassment based on race, color, religion, sex (including pregnancy, childbirth or related medical conditions; sexual orientation; and gender identity), national origin, disability, age (40 or older) or genetic information.” The agency takes pains to remind employers they are responsible to prevent harassment of their employees not only by supervisors and coworkers, but also by customers, clients, vendors, and the like.
The 2024 guidance replaces five prior guidance documents on workplace harassment issued by the agency between 1987 and 1999. In rolling out the guidance, the EEOC highlighted a number of notable changes in the law since then, including the 2020 Bostock v. Clayton County decision, in which the U.S. Supreme Court held that Title VII’s prohibition on discrimination “because of sex” includes discrimination on the basis of sexual orientation and gender identity. The agency also noted that the emergence of new issues, such as online harassment, called for such an update.
The release of the updated guidance marks the end of a long and arduous history for the agency on this subject. In 2015, shortly prior to the advent of the “#MeToo movement,” the EEOC convened a Select Task Force on the Study of Harassment in the Workplace, which issued a seminal report in June 2016. Subsequently, in 2017, during the prior administration, the EEOC published a proposed update of its harassment guidance, but that proposal was never finalized. In October 2023, the agency published revised draft guidance, prompting roughly 38,000 comments.
The EEOC explains the structure of the latest guidance as follows:
The guidance includes approximately 90 pages of text and an additional 80 pages of annotation that includes 387 footnotes, citing various court decisions with brief explanations of the cases and other supporting authority for the guidance. The EEOC states that its harassment guidance “serves as a resource for employers, employees, and practitioners; for EEOC staff and the staff of other agencies that investigate, adjudicate, or litigate harassment claims or conduct outreach on the topic of workplace harassment; and for courts deciding harassment issues.” Even so, the EEOC cautions, “Nothing in this document should be understood to prejudge the outcome of a specific set of facts presented in a charge filed with the EEOC.”
With respect to the substantive guidance, the agency highlights a wide range of conduct that may, if sufficiently severe and pervasive, rise to the level of actionable harassment, 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.
With respect to the limits of legal liability for harassment, the EEOC cautions that “If an employee experiences harassment in the workplace but the evidence does not show that the harassment was based on a protected characteristic, the EEO statutes do not apply.”
In dealing with “hostile environment claims,” the EEOC acknowledges longstanding precedent regarding the standard to be applied when dealing with such claims:
The guidance devotes an entire section to the topic of employer liability and the basic standards to be applied:
The guidance includes 77 “Examples” to provide practical advice on most of the topics covered in the guidance. The updated guidance also provides employers with suggestions they may wish to consider in responding to complaints of harassment, as well as strategies for preventing harassment from occurring in the first place.
Finally, the guidance includes a section called “Addendum Pursuant to 29 C.F.R Sec. 1695.6(c) on EEOC Responses to Major Comments Received on the Proposed Enforcement Guidance on Harassment in the Workplace.” As an example of the Addendum’s contents, while some commenters asserted that Bostock was limited in scope and did not address, among other things, sex-segregated bathrooms, the final guidance took a broad-based approach regarding sex-based harassment involving sexual orientation and gender identity, explaining,
The topic of “free speech” and religious views on topics such as abortion or requiring use of pronouns based on another individual’s identity is addressed briefly in the Addendum:
Notably, the final April 29 guidance contains in the introduction this statement not included in the draft, “In some cases, the application of the EEO statutes enforced by the EEOC may implicate other rights or requirements including those under the United States Constitution; other federal laws, such as the Religious Freedom Restoration Act (RFRA)….. The EEOC will consider the implication of such rights and requirements on a case-by-case basis.”
Littler will continue to closely monitor the ongoing compliance challenges posed by this new guidance and will keep readers apprised of relevant developments.