EEOC Proposed Guidance on Workplace Harassment
Contact Clara (C.B.) Burns, Charles C. High, Jr., Gilbert L. Sanchez, Isaac J. Blanco and Metzeri A. Camacho -
October 5, 2023
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On September 29, 2023, the Equal Employment Opportunity Commission issued their long-awaited Enforcement Guidance on Harassment in the Workplace (“proposed guidance”). The proposed guidance is currently accepting public comments and as of today, has not been ratified. If ratified, it will replace the longstanding documents issued by the agency in the 1980s and 1990s. The proposed guidance provides clarity on how courts analyze harassment claims and how the EEOC will investigate them. It also gives employers an opportunity to review their employment policies before the proposed guidance takes effect. Most notably, the proposed guidance includes:
- Protections for LGBTQ+ employees in the workplace
- Confirmation that sex-based harassment includes harassment based on pregnancy, childbirth, or reproductive decisions (including decisions about abortion);
- Multiple examples covering a wide range of workplace scenarios; and
- Addresses the effects that digital technology, including social media and AI, can have in the workplace.
The proposed guidance is expected to be ratified, as it follows the U.S. Supreme Court’s decision in Bostock v. Clayton County, GA. (2020), holding that Title VII of the 1964 Civil Rights Acts encompasses bias based on sexual orientation and gender identity. Although wide ranging, a few of the notable provisions covering both the LGBTQ+ community and what constitutes a hostile work environment are outlined below:
- An employee’s reproductive decisions (e.g. contraception, abortion) can be the basis of sex-based harassment.
- Gender identity is a protected characteristic; misgendering or denying access to a consistent bathroom can be considered harassment.
- Harassment may involve multiple protected characteristics and may overlap based on perceived connections.
- Employers must accommodate an employee’s sincerely held religious beliefs (unless the employer can prove an undue burden), but also have a duty to protect other employees from religiously motivated harassment that may create a hostile work environment. You can find more information about religious accommodations HERE.
- Harassment based on the perception that an individual belongs to a protected class is still harassment even if the perception is incorrect.
- Conduct should be evaluated in the context in which it arises – even if not facially discriminatory, the use of “code words” or broader context can be discriminatory (e.g. “you people”)
- A complainant need not prove that discriminatory conduct adversely affected their work performance to establish a hostile work environment.
- Harassment’s direct impact on the complainant is more indicative of a hostile work environment; occurrence in the complainant’s presence carry greater weight than second-hand knowledge.
Guidance for Virtual Environments
The proposed guidance also contains significant provisions regarding harassment in virtual work environments and social media. First, the EEOC advises that conduct within a virtual setting can contribute to a hostile work environment. The specific examples cited in the proposal that may amount to a hostile work environment are:
The proposed guidance also contains significant provisions regarding harassment in virtual work environments and social media. First, the EEOC advises that conduct within a virtual setting can contribute to a hostile work environment. The specific examples cited in the proposal that may amount to a hostile work environment are:
- sexist comments made during a video meeting
- racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting
- sexual comments made during a video meeting about a bed being near an employee in the video image
Second, the proposed guidance clarifies that although employers are generally not responsible for conduct that occurs in a non-work-related context, they may be liable when the conduct has consequences in the workplace and therefore contributes to a hostile work environment. The EEOC provides the following example:
if an Arab American employee is the subject of ethnic epithets that a coworker posts on a personal social media page, and either the employee learns about the post directly or other coworkers see the comment and discuss it at work, then the social media posting can contribute to a racially hostile work environment.
Finally, the EEOC cautions that due to the proliferation of digital technology, it is increasingly likely that the non-consensual distribution of real or computer-generated intimate images using social media can contribute to a hostile work environment, if it impacts the workplace.
What does this mean for employers?
The proposed guidance includes developments in both case law and the workplace that span nearly a quarter of a century. If the proposed guidance is ratified, employers will most likely have to update their existing policies and procedures to incorporate these changes.
The EEOC is accepting public comments until November 1, 2023. Those who would like to submit comments may do so electronically: https://www.regulations.gov/document/EEOC-2023-0005-0001.
We will continue to monitor and keep you updated on all significant changes on this issue. Please feel free to contact Kemp Smith’s Labor and Employment Department if you need guidance and assistance.
