The U.S. Equal Employment Opportunity Commission (EEOC) released long-awaited Enforcement Guidance on Harassment in the Workplace, No. 915.064. The EEOC also published a “Summary of Key Provisions,” FAQs for employees, and a fact sheet for small businesses. This is the EEOC’s first update to its harassment guidance in 30 years, and a lot has happened in those years. This is a good opportunity for employers to review their harassment prevention policies and to update anti-harassment training. 

Despite facing legal challenges from 18 attorneys general in the United States District Court for the Eastern District of Tennessee, the final guidance remains effective and an important resource for employers seeking to navigate the evolving landscape of discrimination and harassment.

The EEOC Provides New and Emerging Examples of Harassment

Traditionally the EEOC’s harassment guidelines have focused on sexual harassment. In its updated guidance the EEOC addresses new and emerging subjects such as pronoun usage and religious practice, abortion in the context of sex harassment, and social media as the basis for a harassment claim. The EEOC provides 77 examples in the guidance, and highlights include:

Emphasis on Pregnancy-Related Sexual Harassment

The EEOC specifies that “sexual harassment” incorporates harassment stemming from pregnancy-related choices such as lactation, contraceptive decisions, and the choice to undergo or refrain from abortion. This clarification is especially significant given the EEOC’s recent final rule for the Pregnant Workers Fairness Act, mandating that employers accommodate individuals needing time off or workplace adjustments for pregnancy-related procedures or recuperation.

Harassment in Remote Workplaces 

The EEOC reaffirmed that conduct that occurs in virtual work environments, including electronic communications using private phones, computers, or social media accounts, can contribute to a hostile work environment if they impact the workplace.

Protections for LGBTQ+ Employees

The guidance makes clear that harassment of LGBTQ+ employees, particularly transgender employees, may be a Title VII violation. For example, discrimination or harassment stemming from the “intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.” At least one circuit court has addressed misgendering as the basis for a sexual harassment claim.

The EEOC found its guidance on LGBTQ+ matters to be a natural extension of the Supreme Court’s decision in Bostock v. Clayton County, 590 U.S. 644 (2020), which held that Title VII sex discrimination encompasses discrimination based on sexual orientation and gender identity.

Religious Accommodations Versus Hostile Work Environments

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. Thus, the EEOC is grappling 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.”

EEOC’s Expectations of an Employer’s Investigation

The guidance emphasizes the importance of “a prompt, impartial, and thorough investigation to determine whether harassing conduct occurred” but that appropriate action, evidence necessary to gather, and “who to interview will depend on the particular facts and circumstances of the allegations.” The guidance states 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.

Many employers’ investigations policies will need to be evaluated to include these guidelines from the guidance.

Conclusion

Despite legal challenges, the EEOC will employ the guidance to assess charges of discrimination and evaluate investigations beyond initial employer position statements. The guidance will likely inform the EEOC’s conclusions regarding evidence of workplace harassment and an employer’s response.

Now is the time to evaluate and update your anti-harassment policies and investigation procedures.

• If you have not specifically mentioned that you prohibit harassment based on LGBTQ+ status or pregnancy, consider doing it now.
• Make sure you can show that any investigator you use has been trained. This does not mean you have to use an outside investigator, but it does mean you need to have a record of the training.
• Have a process to show that you are picking an unbiased investigator.
• Think about a checklist for the investigator that includes things like an investigation plan, preservation of evidence, and updates to the involved parties.

As always, your employment counsel should be able to help with all of this.