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Legal Updates

EEOC Issues New Enforcement Guidance On Workplace Harassment

The Equal Employment Opportunity Commission (“EEOC”) recently released its first updated Proposed Enforcement Guidance on Harassment in the Workplace (the “Proposed Guidance”) since 1999. The Proposed Guidance’s 30-day public comment period ended on November 1, 2023 and the final version will likely be adopted sometime in early 2024.

The final version of the Guidance may not be identical to the Proposed Guidance in all respects, nor will it carry the force of law. However, it is likely to be frequently referenced by courts, EEOC staff, and employment attorneys, and should be an important resource for employers as well.

While the Proposed Guidance is intended primarily as a resource for staff of the EEOC and other federal agencies, it is also aimed at organizations and individuals that investigate, litigate, or adjudicate harassment claims or conduct outreach related to workplace harassment. The EEOC’s Proposed Guidance includes important information about existing requirements under the law and the EEOC’s interpretation of those requirements. At the same time, the EEOC cautions that the document should not be understood to “prejudge the outcome of a specific charge filed with the EEOC.”

The Proposed Guidance And Wider EEOC Priorities

The Proposed Guidance should be read in the context of the EEOC’s most recent Strategic Enforcement Plan, published on September 21, 2023, in which the EEOC listed the following priorities:

(1) eliminating barriers to recruitment and hiring;
(2) protecting vulnerable workers from employment discrimination;
(3) addressing developing issues, such as technology-related employment discrimination;
(4) advancing equal pay;
(5) preserving access to the legal system; and
(6) preventing and remedying systemic harassment.

These enumerated EEOC priorities align closely with the Proposed Guidance.

Proposed Guidance’s New Features

The Proposed Guidance includes several significant additions, including (i) the EEOC’s responses to changes in job environments since the COVID-19 pandemic; (ii) the Supreme Court’s 2020 decision in Bostock v. Clayton County, holding that Title VII’s sex discrimination prohibition includes sexual orientation and gender identity discrimination; and (iii) the recent enactment of the federal Pregnant Workers Fairness Act (“PWFA”).

Remote And Hybrid Workplace Harassment

Reflecting the post-pandemic hybridization of the workplace, the Proposed Guidance notes that employers may be liable for harassment that occurs in a work-related context, even if the conduct happens outside of the regular workplace, such as in a virtual work environment. Employers can also be liable for employee conduct outside the workplace that impacts the workplace, including communications on private phones, computers, or social media accounts that contribute to a hostile work environment.

Given the proliferation of digital technology and the continued use of remote and hybrid work formats since the pandemic, it is increasingly likely that employers will encounter hostile-environment harassment claims based on digital employee activity. On this topic, the Proposed Guidance states that harassment by a supervisor occurring outside the workplace is more likely to lead to a hostile work environment than similar conduct by a coworker, due to a supervisor’s greater ability to affect an employee’s employment status.

Updated Definition Of Sex-Based Harassment

The Proposed Guidance amends the definition of sex-based harassment under Title VII to reflect the Supreme Court’s Bostock decision and the 2023 enactment of the PWFA.

In line with Bostock, the expanded definition includes harassment based on sexual orientation and gender identity, including the manner in which an individual expresses their gender identity. The Proposed Guidance lists examples of such harassment, such as comments about the fact that an individual does not present in a manner stereotypically associated with the person’s gender, intentional misgendering of an employee, and the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.

Under the Proposed Guidance, sex-based harassment also covers conduct based on pregnancy, childbirth, or related conditions. This includes discriminatory conduct based on a person’s reproductive decisions, such as contraceptive choice or abortion. Other examples include adverse action against an employee for expressing breast milk or pressure to transition from full-time to part-time work due to pregnancy.

Systemic Harassment

Both the Proposed Guidance and the Strategic Enforcement Plan discuss systemic harassment, defined as harassment that subjects “multiple individuals to a similar form of discrimination.” Evidence of such classification-based harassment may be used to establish that every employee belonging to that protected class was subjected to a hostile work environment. In these situations, the EEOC’s inquiry focuses on the holistic landscape of the work environment, as opposed to the subjective experiences of each individual complainant.

To avoid liability, an employer whose workplace harassment investigation reveals systemic harassment must adopt a systemic remedy, such as developing and implementing comprehensive, company-wide procedures. If an employer finds that there have been frequent instances of harassment based on the same protected characteristic or characteristics, the employer is responsible for determining whether that conduct reflects the existence of a systemic problem requiring a systemic response.

Other Aspects Of The Proposed Guidance

The following are some other key points highlighted by the EEOC in the Proposed Guidance:

  • Faragher-Ellerth: The Faragher-Ellerth affirmative defense to workplace harassment claims under federal anti-discrimination laws remains integral to the determination of employer liability. The defense (which is not available under certain state and municipal laws governing workplace harassment claims) may be available if, among other things, the employer establishes that it exercised reasonable care to prevent and promptly correct harassing behavior, including by maintaining effective anti-harassment measures.
  • Protections for Religious Expression: While employers are required to accommodate employees’ sincerely held religious beliefs under Title VII, employers also have a duty to protect workers against religiously motivated harassment. According to the EEOC, employers are not required to accommodate religious expression that creates or “reasonably threatens to create” a hostile work environment.
  • Guidance for Employer Updates to Harassment Policies: The Proposed Guidance includes resources to assist employers in reviewing and updating their harassment policies to prevent and address workplace harassment. The Proposed Guidance also provides useful points to guide employers in improving their harassment complaint processes and anti-harassment trainings.

Recommendations For Employers

There are a number of steps we recommend employers take in view of the EEOC’s Proposed Guidance.

  • Review the Proposed Guidance. While the document is subject to change based on comments submitted to the EEOC, it is likely that the final version will be closely similar to the Proposed Guidance.
  • Update employment policies and practices in line with the standards spelled out by the EEOC. For example, every employer should have a policy that clearly indicates “zero tolerance” for harassment. Employer policies should also encourage employees to immediately report concerns about potential harassment. Once appropriate policies are in place, employers should ensure they are consistently enforced.
  • Train managers in addressing complaints of harassment. A number of states (including California, Connecticut, Delaware, Illinois, Maine, New York, and Washington) specifically require sexual harassment training, and even in states that do not have such a requirement, it is crucial for employers to provide anti-harassment training.

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If you have questions about the EEOC’s Proposed Guidance on workplace harassment, please feel free to contact one of our experienced employment lawyers.