Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
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On April 29, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) released a long-anticipated update to its enforcement guidance on harassment in the workplace. The update comes almost 25 years after EEOC last published guidance on this topic. In addition to the guidance itself, the agency simultaneously issued a summary of its key provisions, FAQs on workplace harassment for employees, and a fact sheet for small businesses.
The guidance focuses on legal analysis of harassment and the standards for imposing employer liability for harassment based on the statutes enforced by the EEOC. Thus, the guidance is intended to “protect covered employees from harassment based on race, color, religion, sex (including pregnancy, childbirth or related medical conditions; sexual orientation; and gender identity), national origin, disability, age (40 or older) or genetic information.” The agency takes pains to remind employers they are responsible to prevent harassment of their employees not only by supervisors and coworkers, but also by customers, clients, vendors, and the like.
The 2024 guidance replaces five prior guidance documents on workplace harassment issued by the agency between 1987 and 1999. In rolling out the guidance, the EEOC highlighted a number of notable changes in the law since then, including the 2020 Bostock v. Clayton County decision, in which the U.S. Supreme Court held that Title VII’s prohibition on discrimination “because of sex” includes discrimination on the basis of sexual orientation and gender identity. The agency also noted that the emergence of new issues, such as online harassment, called for such an update.
The release of the updated guidance marks the end of a long and arduous history for the agency on this subject. In 2015, shortly prior to the advent of the “#MeToo movement,” the EEOC convened a Select Task Force on the Study of Harassment in the Workplace, which issued a seminal report in June 2016. Subsequently, in 2017, during the prior administration, the EEOC published a proposed update of its harassment guidance, but that proposal was never finalized. In October 2023, the agency published revised draft guidance, prompting roughly 38,000 comments.
The EEOC explains the structure of the latest guidance as follows:
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Structure of this Guidance In explaining how to evaluate whether harassment violates federal EEO law, this enforcement guidance focuses on the three components of a harassment claim. Each of these must be satisfied for harassment to be unlawful under federal EEO laws.
This guidance also addresses systemic harassment and provides links to other EEOC harassment-related resources. |
The guidance includes approximately 90 pages of text and an additional 80 pages of annotation that includes 387 footnotes, citing various court decisions with brief explanations of the cases and other supporting authority for the guidance. The EEOC states that its harassment guidance “serves as a resource for employers, employees, and practitioners; for EEOC staff and the staff of other agencies that investigate, adjudicate, or litigate harassment claims or conduct outreach on the topic of workplace harassment; and for courts deciding harassment issues.” Even so, the EEOC cautions, “Nothing in this document should be understood to prejudge the outcome of a specific set of facts presented in a charge filed with the EEOC.”
With respect to the substantive guidance, the agency highlights a wide range of conduct that may, if sufficiently severe and pervasive, rise to the level of actionable harassment, including:
- Saying or writing an ethnic, racial, or sex-based slur;
- Forwarding an offensive or derogatory “joke” email;
- Displaying offensive material (such as a noose, swastika, or other hate symbols, or offensive cartoons, photographs, or graffiti);
- Threatening or intimidating a person because of the person’s religious beliefs or lack of religious beliefs;
- Sharing pornography or sexually demeaning depictions of people, including AI-generated and deepfake images and videos;
- Making comments based on stereotypes about older workers;
- Mimicking a person’s disability;
- Mocking a person’s accent;
- Making fun of a person’s religious garments, jewelry, or displays;
- Asking intrusive questions about a person’s sexual orientation, gender identity, gender transition, or intimate body parts;
- Groping, touching, or otherwise physically assaulting a person;
- Making sexualized gestures or comments, even when this behavior is not motivated by a desire to have sex with the victim; and
- Threatening a person’s job or offering preferential treatment in exchange for sexual favors.
With respect to the limits of legal liability for harassment, the EEOC cautions that “If 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.”
In dealing with “hostile environment claims,” the EEOC acknowledges longstanding precedent regarding the standard to be applied when dealing with such claims:
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The Supreme Court explained in 1993 in Harris v. Forklift Systems, Inc. that to establish a hostile work environment, offensive conduct must be both subjectively hostile and objectively hostile. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation. The EEO statutes are therefore not limited to discriminatory conduct that has tangible or economic effects and instead “strike at the entire spectrum of disparate treatment.” However, these statutes do not impose a general civility code that covers “run-of-the-mill boorish, juvenile, or annoying behavior.” …. [T]he standard established in Harris takes a “middle path” that requires the conduct to be more than merely offensive but does not require that the conduct cause psychological harm. |
The guidance devotes an entire section to the topic of employer liability and the basic standards to be applied:
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When a complainant establishes that the employer made an explicit change to a term, condition, or privilege of employment linked to harassment based on a protected characteristic (sometimes described as “quid pro quo” …), the employer is liable and there is no defense. In cases alleging a hostile work environment, one or more standards of liability will apply. Which standards apply to any given situation depends on the relationship of the harasser to the employer and the nature of the hostile work environment… To summarize:
Negligence provides a minimum standard for employer liability, regardless of the status of the harasser. Other theories of employer liability—automatic liability (for proxies and alter egos) and vicarious liability (for supervisors)—are additional bases for employer liability that supplement and do not replace the negligence standard. If the complainant challenges harassment by one or more supervisors and one or more coworkers or non-employees and the harassment is part of the same hostile work environment claim, separate analyses of employer liability should be conducted in accordance with each harasser’s classification. |
The guidance includes 77 “Examples” to provide practical advice on most of the topics covered in the guidance. The updated guidance also provides employers with suggestions they may wish to consider in responding to complaints of harassment, as well as strategies for preventing harassment from occurring in the first place.
Finally, the guidance includes a section called “Addendum Pursuant to 29 C.F.R Sec. 1695.6(c) on EEOC Responses to Major Comments Received on the Proposed Enforcement Guidance on Harassment in the Workplace.” As an example of the Addendum’s contents, while some commenters asserted that Bostock was limited in scope and did not address, among other things, sex-segregated bathrooms, the final guidance took a broad-based approach regarding sex-based harassment involving sexual orientation and gender identity, explaining,
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Sex-based discrimination under Title VII includes employment discrimination based on sexual orientation or gender identity. Accordingly, sex-based harassment includes harassment based on sexual orientation or gender identity, including how that identity is expressed. Harassing conduct based on sexual orientation or gender identity includes 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); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity. |
The topic of “free speech” and religious views on topics such as abortion or requiring use of pronouns based on another individual’s identity is addressed briefly in the Addendum:
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The Commission fully recognizes the importance of protecting free speech and has added to the guidance specific language about the potential interaction between statutory harassment prohibitions and other legal doctrines, including the U.S. Constitution…..The interplay between free speech protections and statutory harassment prohibitions in particular matters can be highly fact-specific, and the Commission will carefully consider these issues as presented on a case-by-case basis. A detailed discussion of free speech principles, however, is beyond the scope of this final guidance. Some commenters also expressed concern that, as they understood the guidance, any workplace discussion of religious perspectives on certain issues, such as abortion or gender identity, would be unlawful harassment. That interpretation is not correct and is not the Commission’s intent. As discussed in the final guidance, whether conduct constitutes unlawful harassment depends on all the circumstances and is only unlawful under federal EEO law if it creates a hostile work environment….. |
Notably, the final April 29 guidance contains in the introduction this statement not included in the draft, “In some cases, the application of the EEO statutes enforced by the EEOC may implicate other rights or requirements including those under the United States Constitution; other federal laws, such as the Religious Freedom Restoration Act (RFRA)….. The EEOC will consider the implication of such rights and requirements on a case-by-case basis.”
Littler will continue to closely monitor the ongoing compliance challenges posed by this new guidance and will keep readers apprised of relevant developments.
