EEOC Finally Issues Long-Awaited New Harassment Guidance

By Samantha Halem, Jessica Spector-Eischen   May 31, 2024

Over one third of the charges filed at the Equal Employment Opportunity Commission (“EEOC” or “Commission”) in the last five years assert a claim for harassment.  Despite several prior efforts, the EEOC has not updated its guidance on what constitutes harassment in the workplace under the federal equal employment opportunity (“EEO”) statutes since 1999.  On April 29, 2024, after over two decades of seismic changes in employment law, from the #metoo movement to the Supreme Court’s recognition in Bostock that discrimination based on sexual orientation and gender identity is unlawful sex discrimination, the EEOC has finally provided employers with a helpful guide for evaluating modern-day federal harassment claims (the “Guidance”).  Below, we highlight portions of the new Guidance as well as provide employers with helpful “to dos” to mitigate risk and harm.

Why Now?

The purpose of the Guidance is to communicate the EEOC’s position on legal issues relating to harassment in the workplace.  The Commission took this opportunity to produce a comprehensive outline of how it intends to approach present-day workplace harassment claims, illustrated by 77 examples providing practical advice and modern examples portraying how harassment plays out in the workplace.

While the Guidance is not legally binding precedent, it provides “legal analysis of standards for harassment and employer liability applicable to claims of harassment” under the EEO statutes enforced by the Commission.  Significantly, it gives us a window into how the EEOC will decide charges and the positions it will take in litigation.

A copy of the Guidance can be found here.  The EEOC published two related and helpful documents for employers: a summary of the Guidance’s key provisions and a fact sheet for small employers.  The EEOC also issued an FAQ directed to employees.

 Why This Matters

The Guidance is sure to be frequently cited in the future by practitioners, and courts and agencies will likely cite them as persuasive when deciding cases that come before them.  The Guidance is generally consistent with longstanding precedent that harassment violates the federal EEO laws if it is based on a protected class and affects a term, condition, or privilege of employment.  Actionable conduct under the Guidance is conduct that is severe and pervasive enough to create a hostile work environment on the basis of membership in applicable protected class[es].

The Guidance also is helpful in explicitly reciting are arguably basic but crucial concepts, such as “[i]f an employee experiences harassment in the workplace but the evidence does not show that the harassment was based on a protected characteristic, the EEO statutes do not apply.”  It also clarifies slightly more controversial truisms, like reiterating that “hostile environment claims” must be BOTH subjectively and objectively hostile, and the victim must need to subjectively feel the harassment is abusive to have a viable claim.  These statements are likely to be frequently cited in future legal arguments.

What are the Highlights?

Below is a summary of some of the EEOC’s more novel, meaningful pronouncements on its view of the state of harassment law today.  This summary is not intended to be a thorough analysis of the Guidance; rather, it highlights some of the more interesting elements.

Many of the below interpretations are already found in various lower court federal cases.  While many employers will not be surprised by the articulations set forth below, the Guidance is still meaningful and impactful and will likely lead to new and more creative claims of harassment by employees.

            Protected Class Developments

  • Sexual Orientation and Gender Identity

The EEOC stated that the Guidance was necessary in part because of the landmark 2020 Supreme Court decision of Bostock v. Clayton County, Georgia.  Prior to Bostock, the federal EEO laws did not specifically prohibit discrimination on the basis of sexual orientation or gender identity/expression, and Congress, despite numerous attempts, had repeatedly failed to add the protected classes to the statute.  In Bostock, the Supreme Court held that discrimination on the “basis of sex” includes both discrimination on the basis of sexual orientation and gender identity/expression.  The Court reached this conclusion holding that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

In the Guidance, the EEOC builds on the Supreme Court’s decision in Bostock by providing useful examples of actions that may be deemed harassment in the workplace.  Accordingly, the EEOC asserts that the following conduct could be deemed harassment:

  • “Outing” a person’s sexual orientation or gender identity;
  • Repeated or intentional misgendering (using a different pronoun than the one requested by the employee) and “dead naming” (using a person’s prior name); and
  • Denying an employee access to the bathroom or other sex-segregated facility aligned with their gender identity.
  • Sex-Based Harassment Based on Reproduction

Conduct toward a person due to their pregnancy, lactation, and any related medical condition (including morning sickness, use or non-use of contraception, and ) will be deemed to be “on the basis of sex.”

  • Race and Color-Based Harassment

The EEOC specifically states in the Guidance that racial harassment goes beyond just conduct directly referencing a person’s race.  It also includes characteristics linked to the employee’s race, such as a person’s name, cultural dress, and accent, or speech.  The EEOC thus incorporates the elements of the CROWN Act and similar laws that have been enacted in 23 states by explicitly stating that harassment based on physical characteristics such as hair style and texture can also be race-based harassment.

Harassment on the basis of color, is more than just race-based; it also includes harassment based on a person’s pigmentation, complexion, and skin tone.

  • Religious Harassment

The Guidance clarifies that having no religion or being atheist can be the basis of religious discrimination.

When a person’s sincerely held religious belief is a violation of another person’s protected class status, the employer does not need to provide an accommodation.  Therefore, if someone’s religious expression “creates, or reasonably threatens to create a hostile environment,” there will be no claim of religious discrimination.  The EEOC uses the fact pattern of a recent case involving a schoolteacher who was terminated for failing to use a transgender student’s preferred name and pronouns.  The teacher cited his religious beliefs as the reason he was unable to address the student in accordance with the student’s wishes.  The federal district court ruled that the school did not discriminate against the teacher, because to accommodate the teacher’s religious beliefs would cause undue hardship on the school district.  The risk of student “harm and an unreasonable risk of liability” which also “contradict[ed] the school’s mission to foster a supportive environment” was sufficient to constitute an undue burden.

  • Disability Harassment

The EEOC has adopted the concepts of “associational disability harassment,” meaning conduct toward an employee (with no disability) based on their relationship with a person who is disabled and “assumed disability harassment,” meaning conduct toward a person based on the employer’s perception that they are disabled.

  • Retaliatory Harassment

Unlike harassment based on protected classes, which must be severe and pervasive to be actionable, the Guidance states that retaliatory harassment is held to a lower standard, prohibiting conduct based on the protected activity that might “deter a reasonable person from engaging in that activity.”

  • Intraclass and Intersectional Harassment

The EEOC states that the harasser does not need to be in a different protected class than the victim (otherwise known as intraclass harassment).

Similarly, the Guidance states that harassment based on more than one protected class is also actionable under more than one EEO statute.  This is known as intersectional harassment.

  • Context and Conduct

The Guidance states that in determining whether harassment has occurred, comments and actions must be analyzed under their societal context, looking at historical usage, inflection, tone, and similar.

New Guidance on what Constitutes a Term, Condition, or Privilege of Employment

  • Virtual Harassment. Virtual harassment did not exist when the EEOC last issued harassment guidance.  Today, people often interact more over devices, texts, instant messages, and videoconference platforms than they do in person.  Savy employers were already treating such “locations” as workplaces for the purposes of EEO laws, and the EEOC has officially endorsed this approach.  The EEOC states that even having a visibly racist or antisemitic image (such as a confederate flag or swastika) viewable in a person’s home on Zoom can be an element of a harassment claim.
  • Social Media. But what if your employee posts a racist meme on their personal social media profile?  Can that constitute workplace harassment?  The EEOC opines that this is generally not enough on its own to create a hostile work environment.  But be wary of relying on this, as courts and cases filed concurrently with state agencies may reach a different conclusion.
  • Is the Conduct Severe? The Guidance says it would be impossible to list all relevant factors that could be used to determine whether conduct is severe but provides a non-exclusive set of benchmarks.
    • Harassment by an employee’s supervisor generally is more impactful than harassment by a co-worker.
    • It is possible that comments that a victim learns of after the fact and does not experience themselves could be factors in determining the severity of harassment.
    • Public harassment in front of witnesses, as well as isolated harassment, may contribute to the level of conduct severity (depending on the fact pattern).
    • According to the EEOC, whether the alleged victim communicated that the conduct was unwelcome may transform conduct that may not be offensive to many into conduct that is objectively hostile.

Policies, Training, and Investigations

In the Guidance, the EEOC highlights the importance of employers both having a compliant anti-harassment policy and providing training to all employees on what constitutes harassment and how to report concerns.  Employers should also provide specific management training to supervisors about how to prevent and address situations of which they become aware.  The EEOC stresses that harassment training ideally should be tailored to the particular workplace and workforce, be provided on a regular schedule, and be comprehensible to all employees.

Investigations must also be “prompt” and tailored to the situation and sufficient to “arrive at a reasonably fair estimate of truth.”  While the EEOC agrees with the general practice that not all investigations must utilize outside investigators (while some do), it does maintain that any investigator should be an impartial party and that the investigator should speak to all involved parties.  The investigator should be trained in how to conduct an investigation.

Key Investigation Takeaways:

  • Be mindful that the complainant/employee does not suffer negative consequences during the investigation.
  • Maintain records of all harassment complaints.
  • Utilize consistent processes in addressing complaints.

Litigation Filed

On May 13, 2024, the Attorney Generals of 18 states jointly-filed a lawsuit against the EEOC to block enforcement of the Guidance.  The lawsuit, filed in the Federal District Court for the Eastern District of Tennessee, contends that the EEOC is impermissibly extending Bostock’s prohibition against sex-based harassment to such acts as a failure to accommodate requests from transgender employees on bathroom usage and pronoun preference.  While that litigation may ultimately impact employer liability for sex-based harassment, for now the Guidance is in effect and the EEOC has indicated it will comply with the Guidance.  HRW will be monitoring the pending challenge to the Guidance.

What Does This Mean for Employers?

Ultimately, the new Guidance is an excellent resource for employers to develop and implement workplace policies to comply with federal EEO laws and to better understand how harassment might exist in the modern workplace and how employers can and should address conduct and behavior before it evolves into a legal claim.

Many employers will find nothing particularly earth-shattering in the Guidance, given that they likely were already operating under the assumption that much of the listed conduct could be an element of a hostile work environment claim.  The best method to avoid harassment litigation has always been and remains:

  • Drafting and Disseminating Policies:
    • Have a clear policy prohibiting harassment that complies both with federal law and the states where you have employees.
    • Recognize that having employees in multiple states may require compliance with very specific statutory requirements regarding the drafting, content, and dissemination of the policy.
  •  Training:
    • Multiple jurisdictions have specific anti-harassment training requirements. Ensure you meet these requirements with compliant trainings.
    • Even if you only have employees in a state without an explicit training requirement, such as Massachusetts, employers will still benefit from providing training. Hopefully, quality training will result in employees being less likely to engage in inappropriate behavior and employees being aware of how to bring issues to their employer’s attention, so that problems can be fixed before extensive harm occurs.
    • Training is also critical in countering a claim that the employer was negligent in its efforts to prevent harassment.
  • Response to Complaints/Investigations:
    • The anti-harassment policy should clearly set forth the method by which an employee should raise concerns.
    • Employers should respond consistently and promptly to allegations of inappropriate conduct.
    • Investigations should occur and discipline should be taken as appropriate.

Our team of attorneys are available to assist you.  We are pleased to provide Respect in the Workplace training customized to both managers and employees, as well as specific manager training focusing on how to respond to issues in the workplace.  We are also able to advise you on conducting investigations into allegations of misconduct.  If you have any questions about the EEOC’s Guidance or how to prevent and respond to harassment claims, please reach out to your HRW attorney for assistance with analyzing the best strategy for your company.

[1] An individual is considered a “proxy” or “alter ego” of the employer if the individual possesses such a high rank or authority that the individual’s actions can be said to speak for the employer.

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