The EEOC recently released its final Enforcement Guidance on Harassment in the Workplace, replacing earlier guidance issued between 1987 and 1999.
The guidance, issued on April 29, 2024, reflects how the EEOC’s interpretation of what constitutes harassment has evolved over time and provides a roadmap for the commission’s theories of employer liability. The guidance is also instructive as to the type of harassment allegations most likely to catch the EEOC’s attention for purposes of systemic investigation and enforcement actions.
While much of the guidance covers well-trod territory, notable examples addressed by the guidance include:
Harassment That Does Not Overtly or Explicitly Reference a Protected Category
The guidance explains that individuals may be harassed based on their race, for example, even if comments made to the individuals do not specifically mention their race. Harassment may be based on traits or characteristics linked to an individual’s race, such as their name, the clothes they wear, their accent or manner of speech (or limited English proficiency). Referring to black employees as “boy” or “you people” may be racially harassing depending on the context and circumstances of the comments.
Harassment may also be based on physical characteristics, including hair textures or hairstyles commonly associated with specific racial groups. For example, negative references to dreadlocks, comments on “exotic” looks of multi-racial employees or comments suggesting relaxed natural hair looks unprofessional.
Relatedly, the guidance reminds employers to be cognizant that hairstyles or beards may need to be accommodated for religious (or other) reasons. It cautions employers not to permit harassment of employees based upon the accommodations granted to them.
Harassment may also be based upon comparative treatment alone, without any overt reference to a specific protected category. This might include situations where managers show favoritism to one group over another. For example, managers can’t consistently allow male employees to return late from lunch or take longer breaks without repercussions while simultaneously engaging in more strict monitoring or discipline of female employees.
Ultimately, however, the EEOC or plaintiff must still establish causation by showing that the protected category is the reason for the harassment.
Stereotyping
Harassment is based upon a protected characteristic if it is based on social or cultural expectations about how individuals in a particular group may act or appear. This is true, according to the guidance, regardless of whether the expectations are considered positive, negative or neutral. Harassment may result from:
- Sex-based assumptions about family responsibilities, suitability for leadership, gender roles, weight and body types or expressions of gender identity
- Situations where women are routinely sexualized
- Derogatory racial stereotypes such as referring to Black employees as drug dealers or suggesting Black employees have a propensity to commit theft
- Assumptions about the retirement age of older workers or whether older workers can safely perform their job duties
Harassment That Takes Place Outside Work
A hostile work environment claim can include conduct that occurs off site, but in a work-related context. This may include conduct at an off-site physical location or conduct that occurs within a virtual work environment. Employers may have liability for conduct and comments communicated using work-related communications systems, accounts, devices or platforms, such as email systems, electronic bulletin boards, instant message systems, videoconferences, websites, official social media accounts or other equivalent services or technologies.
In response to a multitude of comments, the EEOC’s guidance clarifies that employers generally are not responsible for conduct that occurs in a non-work-related context, unless the conduct has consequences in the workplace and therefore contributes to a hostile work environment. Liability may also arise where co-workers bring personal social media posts into the work environment by discussing or sharing the posts while at work or on working time.
Harassment Based Upon Religious Coercion or Bias
Harassment may occur where owners or managers try to impose their own religious views on employees or exhibit favoritism toward employees who share those views. Religious harassment may also occur where employees make fun of or mock the practices of religions, such as referring to co-workers’ beliefs as “crazy” or suggesting a co-worker belongs to a “cult.”
Harassment Based Upon Sexual Orientation or Gender Identity
Sex-based harassment includes harassment based upon sexual orientation or gender identity. It may include the following comments or conduct:
- “Outing” (disclosure of an individual’s sexual orientation or gender identity without permission)
- Stereotyping associated with gender norms or expectations
- Misgendering (repeated and intentional misuse of pronouns)
- Denial of access to a bathroom consistent with an individual’s gender identity
The guidance notes that the EEOC received extensive comments arguing that the commission’s position on sex-segregated bathrooms exceeded the scope of its statutory authority and went beyond the United States Supreme Court’s decision in Bostock v. Clayton County, 590 U.S. 644 (2020). Other comments claimed that the EEOC’s guidance infringed upon free speech rights by requiring the use of pronouns based on an individual’s gender identity or by restricting speech on certain controversial issues, such as abortion.
Harassment of Employees Granted an Accommodation
Employers who grant accommodations to disabled employees must ensure those employees are not harassed because of the accommodations granted to them. For example, employers may be liable for harassment where co-workers give disabled employees a hard time because they have been granted additional breaks or modified job duties as accommodations. The same analysis would apply to religious or other accommodations.
Associational Harassment
Employees who are not disabled may experience harassment because of their association with someone who is disabled (typically a family member or spouse/partner). Similarly, a white employee may be harassed because his spouse is black or because he has a biracial child.
Relatedly, employees may be subject to a hostile work environment even if the harassing conduct is not targeted at them directly. It may be enough that they overheard or witnessed repeated sexual or racial epithets in the workplace. However, the more directly the comments or conduct affect the employee, the more probative it will be of a hostile work environment. Anonymous harassment such as graffiti or displays of nooses or swastikas could also create a hostile work environment.
Harassment Based Upon Erroneous Assumptions
Harassment may be based upon a perception that the individual belongs to a protected class or group, even where that perception is wrong. For example, it is national origin-based harassment for a person to harass a Hispanic woman because the harasser incorrectly believes she is Pakistani. It is religious harassment for a person to harass a Sikh man wearing a turban because the harasser incorrectly thinks he is a Muslim.
Guidance Overlap With the EEOC’s Strategic Enforcement Plan
The new guidance complements the EEOC’s Strategic Enforcement Plan is several key ways, including:
Protection of Vulnerable Workers
One of the primary areas of focus for the EEOC involves the protection of particularly vulnerable workers, including older workers, immigrant workers, teen workers and survivors of gender-based violence. Employers who receive repeated charges by individuals in these categories or who receive charges that suggest a pattern or practice of harassment of individuals in these protected categories are at risk of class or systemic litigation.
Protections Against Pregnancy Harassment
The EEOC has taken a strong position on preventing harassment or discrimination based upon pregnancy, childbirth or related medical conditions and recently issued pregnancy discrimination guidance. Likewise, this new guidance states that harassment may occur when offensive comments are made about breast-feeding/lactation, using or not using contraception, or abortions as such comments may target an individual’s sex. Comments about an individual’s pregnancy, including weight gain, frequent bathroom breaks, morning sickness, or pregnancy-related accommodations, also may constitute harassment.
Interplay Between Technology and Harassment
Like the EEOC’s Strategic Enforcement Plan, its newly issued harassment guidance contemplates how advancements in technology can contribute to a hostile work environment.
How Can Employers Minimize Legal Risk?
Update and Train on EEO Policies
Employer should ensure that their anti-harassment (and anti-discrimination) policies are up to date and consistent with the more novel or nuanced theories of harassment identified here. Policies should expand the list of protected categories to include sexual orientation and gender identity if they do not already.
On a related note, employers may also want to confirm that their accommodation policies address accommodations based not only on disabilities but other protected categories as well.
Once policies are updated, they should be distributed to all employees. Employers should consider pairing the policy distribution with training for all employees. Further, employers may also consider implementing periodic anti-harassment training that is interactive in nature, which is required by some states and advisable in all.
Train Supervisors to Recognize Potential Forms of Harassment
Employers should incorporate these updated theories of harassment into their supervisor/management training programs so that front-line supervisors are trained to identify and promptly address potential harassment before it becomes potential or actual litigation (particularly class and systemic litigation). The guidance provides specific examples that could be incorporated into interactive training programs. Too often supervisors do not recognize the legal implications of comments they may hear in the workplace, particularly where the connection to a protected category is not as obvious as a racial slur. Gaps in compliance and legal exposure often occur where issues are not promptly elevated to Human Resources to investigate and address.
Take Employee Concerns Seriously and Act Accordingly
The guidance makes clear that harassment can occur in many forms, several of which may not have overt reference to a particular protected category. The guidance makes clear that the EEOC takes a very broad view of what comments or conduct may constitute harassment. Employers may be well served to err on the side of formally investigating and addressing concerns, even if they may not, at first blush, appear to implicate issues of harassment or discrimination as a matter of law.
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