EEOC Publishes Final Guidance on Workplace Harassment

On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) published a final version of its Enforcement Guidance on Workplace Harassment. The new guidance provides  updates and agency direction on workplace harassment in virtual or online work environments, as well as harassment related to sexual orientation, gender identity, pregnancy, and religion.

Background of the New EEOC Guidance

In January 2015, the EEOC announced the creation of a 16-member Select Task Force on Harassment in the Workplace whose objective was to study workplace harassment and recommend best practices for prevention.

Following the presentation of the Report of the Co-Chairs of the Select Task Force in June 2016, the EEOC released its first proposed Enforcement Guidance on Unlawful Harassment and invited public comment. However, it was not promulgated during the then-Trump Administration.

Since the initial proposal was made public, the meaning of harassment in the modern era has been significantly impacted by events such as the #MeToo movement against sexual harassment and sexual violence, as well as the widespread rise in remote work following the COVID-19 pandemic.

The new guidance addresses issues such as remote work, teleconferencing, and social media, as well as the United States Supreme Court's opinion in Bostock v. Clayton County., Georgia, 590 U.S. 644, 683, 140 S. Ct. 1731, 1754, 207 L. Ed. 2d 218 (2020).[1]

The New EEOC Guidance

The new guidance is the culmination of the EEOC's seven-year effort to update its harassment guidelines into the modern era and supersedes the commission's guidelines published in the 1980s and 1990s.

The guidance provides a roadmap on what qualifies as a protected characteristic and identifies workplace behaviors that the EEOC believes rise to the level of harassment. The EEOC also provided the following key updates as to what it considers covered harassment under Title VII and certain federal discrimination laws.

Sexual Orientation and Gender Identity

The updated EEOC emphasized that discrimination based on sex under Title VII includes discrimination based on sexual orientation or gender identity, including how that identity is expressed. Accordingly, the new guidelines define sex-based harassment to include the following conduct:

• 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); and
• the denial of access to a bathroom or other sex-segregated facility consistent with the individual's gender identity.

The guidance also provides that unlawful harassment can occur virtually "if the conduct is conveyed using work-related communications systems, accounts, devices, or platforms, such as an employer's email system, electronic bulletin board, instant message system, videoconferencing technology, intranet, public website, official social media accounts, or other equivalent services or technologies."

For example, sexist, ageist, or ableist comments made during a video meeting or typed in a group chat would be considered harassment. These examples illustrate that conduct within a virtual work environment can contribute to a hostile work environment, similar to a physical work environment.

Pregnancy, Childbirth, or Related Medical Conditions

The new guidance provides that harassment on the basis of pregnancy, childbirth, or related medical conditions can "include issues such as lactation; using or not using contraception; or deciding to have, or not to have, an abortion."

Harassment based on the issues above will be covered under Title VII "if it is linked to a targeted individual's sex, including pregnancy, childbirth, or related medical conditions." The guidance includes several examples, including an employee's negative comments on an employee's pregnancy-related morning sickness and an employee's use of the lactation room.

Race and Color

The new guidance provides that Title VII covers color-based harassment due to an individual's pigmentation, complexion, or skin shade and tone. The guidance provides examples of color-based harassment, including a supervisor harassing Black employees with darker complexions but not harassing Black employees with lighter skin tones, even though they are all of the same race or national origin.

Religion

The EEOC clarified an employee's protection for religious expression. Religious-based harassment "includes the use of religious epithets or offensive comments based on an [employee's] religion (including atheism or lack of religious belief), religious practices, or religious dress. It also includes harassment based on religious stereotypes and harassment because of a request for a religious accommodation or receipt of a religious accommodation."

Additionally, religious harassment also encompasses explicitly or implicitly coercing employees to engage in religious practices at work.

What is Next for Employers?

The new guidance includes resources to assist employers in reviewing and updating their harassment policies to prevent and address workplace harassment moving forward. While the new guidance is final, it is expected to face legal challenges.

While the legal challenges may impact the EEOC's enforcement of the new guidance, the guidance has already gone into effect. Therefore, employers should review the Enforcement Guidance and ensure their workplace harassment policies and anti-harassment initiatives are compliant with the new guidance.

[1] In Bostock, the Supreme Court held that Title VII of the Civil Rights Act protects employees from discrimination based on their sexual orientation and gender identity.