The United States Equal Employment Opportunity Commission (EEOC) is seeking public comment on its proposed “Enforcement Guidance on Harassment in the Workplace” through November 1, 2023. The proposed guidance provides a legal analysis of standards for harassment and employer liability applicable to claims of workplace harassment under the statutes and regulations enforced by the EEOC. If approved, this will mark the first time in over 30 years that the EEOC has provided comprehensive guidance on workplace harassment as it seeks to address legal and societal changes such as those applicable to sexual orientation, gender identity, pregnancy, abortion, birth control, and the use of digital technology, social media, and online content. Employers would be wise to review the proposed guidance as well as their internal practices and policies regarding harassment in the workplace to ensure they are consistent with existing law and the EEOC’s new comprehensive guidance.
Under federal law, “harassment” is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), and the Americans with Disabilities Act of 1990 (ADA). Under these laws, “harassment” is unwelcome conduct based on an employee’s legally protected characteristics such as race, color, religion, sex, national origin, age, disability, or genetic information (including family medical history). According to the EEOC:
Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws. (See https://www.eeoc.gov/harassment.)
Subject to certain affirmative defenses, employers may be liable for harassment by a supervisor. Employers may also be liable for harassment by non-supervisory employees and non-employees over whom the employer has control if it knew or should have known about the harassment and failed to take prompt and appropriate corrective action.
Over the years, the EEOC has published several manuals and guidance documents aimed at helping the public understand federal workplace harassment laws; but it has not done so since 1999. As a result, the EEOC seeks to issue new guidance that keeps pace with the modern workplace.
Key Takeaways from The Proposed Enforcement Guidance on Harassment in the Workplace
The proposed guidance is comprehensive and detailed (144 pages), providing readers with numerous summaries, examples, and some 350 footnotes. The proposed guidance outlines the legal framework applicable in harassment cases by identifying and explaining: (I) an employee’s legally protected characteristics and required proof of causation; (II) harassment resulting in discrimination with respect to a term, condition, or privilege of employment; (III) employer liability; and (IV) systemic harassment.
In so doing, the proposed guidance reiterates and updates prior guidance on harassment in the workplace. It also includes the following notable changes from past guidance documents:
- Harassment Based on Pregnancy, Childbirth and Related Medical Conditions, and Reproductive Decisions. Harassment based on an employee’s sex constitutes discrimination for which an employer may be liable. The proposed guidance provides that sex-based harassment includes harassment based on pregnancy, childbirth, and related medical conditions (including lactation), as well as, harassment based on a woman’s reproductive decisions, such as decisions about contraception or abortion.
- Harassment Based on Sexual Orientation and Gender Identity. The proposed guidance also provides that sex-based harassment includes harassment based on sexual orientation and gender identity, including how that identity is expressed. Examples include harassment because an individual does not present in a manner that would stereotypically be associated with that person’s gender, intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity, or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.
- Harassment Through Digital or Virtual Technology. The proposed guidance clarifies through several examples that harassment can occur virtually through videoconferencing, email, instant messaging, and other electronic forms of workplace communication. In addition, covered conduct can occur through private phones, computers, email, instant messaging, or social media accounts, if it impacts the workplace.
What Happens Next?
- After the public comment period is closed, the EEOC will review and potentially revise the proposed guidance based on the input received. It will then issue the final guidance.
- The final guidance document will supersede the EEOC’s Compliance Manual Section 615: Harassment (1987); Policy Guidance on Current Issues of Sexual Harassment (1990); Policy Guidance on Employer Liability under Title VII for Sexual Favoritism (1990); Enforcement Guidance on Harris v. Forklift Sys., Inc. (1994); and Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999).
- It is important to note that the final guidance is intended to clarify the EEOC’s existing policies, regulations, and governing law. The final guidance document will not have the force and effect of law and is not binding on the public or the courts (although courts may give deference to the EEOC’s interpretation of the laws governing it). Nevertheless, the final guidance provides employers with important insight into how the EEOC will investigate and enforce federal workplace harassment claims.
- Again, employers should consider reviewing the proposed guidance in its entirety so they can update their internal practices and policies regarding harassment in the workplace.
This regulatory summary is informational only. The presentation or use of this information does not in any manner constitute an attorney-client relationship between BHGR and the website user. While the information on this site concerns legal issues, it is not intended as legal advice or a substitute for particularized advice from your own legal counsel. If you have any questions about the impact of the proposed EEOC guidance discussed above on your business or livelihood or would like help reviewing your company’s practices and policies regarding harassment in the workplace, BHGR’s employment law group is here to help.
To read more or comment on the proposed guidance, visit: