ATTENTION EMPLOYERS: YOUR 3-STEP GUIDE TO THE EEOC’S UPDATED ENFORCEMENT GUIDANCE ON HARASSMENT IN THE WORKPLACE

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The wait is over: Nearly a quarter century since its last update, the Equal Employment Opportunity Commission (“EEOC”) has released the revamped Enforcement Guidance on Harassment in the Workplace (the “Guidance”). The Guidance, released on April 29, 2024 and effective immediately, replaces five prior workplace harassment guidance documents issued between 1987 and 1999, and addresses several key concepts based on recent developments in the law and workplace trends, including clarified coverage of LGBTQ+ individuals, revised workplace protections in accordance with the Pregnant Workers Fairness Act (“PWFA”) and Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”), and modernized harassment constructs in the context of virtual work and social media. 

Significant updates addressed by the Guidance, and summarized below, fall generally into three categories: (1) revised interpretations of protected characteristics; (2) new explanations of the various forms harassment can take; and (3) understanding harassment in the context of a virtual workplace. Employers should take steps to ensure that their anti-harassment policies are up to date in these key areas.

1. Protected Characteristics

The Guidance provides updated descriptions of how harassment may appear in the modern workplace in the context of long-standing protections based on sex, race, color, and religion.

Sex

One of the most significant updates to the Guidance comes in light of the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County. Pursuant to this decision, the EEOC makes clear that workers are broadly protected from discrimination on the basis of sex, including sexual orientation or gender identity, and gender expression. 

The Guidance explains various ways in which harassment based on sexual orientation or gender identity may occur, including the use of epithets, physical assaults, “outing” (disclosure without permission of an individual’s sexual orientation or gender identity), and repeated and intentional misgendering of an individual. Additionally, and despite the vehement opposition of EEOC Commissioner Andrea Lucas, the Guidance also includes denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity as unlawful discrimination. 

The EEOC provides several scenarios depicting harassment based on sexual orientation and gender identity, including one in which a supervisor learns of an employee’s transgender status and, subsequently, instructs the employee to wear pants to work because a dress would be “inappropriate,” while other employees are permitted to wear dresses and skirts.

Additionally, in accordance with the PWFA (see our eAlert discussing the EEOC’s recent issuance of the PWFA final rule and interpretive guidance HERE) and PUMP Act, the Guidance clarifies that sex-based harassment also includes harassment based on pregnancy, childbirth, or related medical conditions, such as issues related to lactation, and choices regarding contraception use or abortion. 

The EEOC identifies various ways in which pregnancy-based harassment may occur, such as:

  • A coworker accuses a pregnant employee of “always” being in the bathroom and calls her a “heifer.”
  • A male coworker pretends to enter a lactation room while an employee is pumping and complains that he is not allowed to take breaks in private rooms.
  • A coworker complains that a pregnant employee is permitted to telework and utilize flexible scheduling and accuses her of getting pregnant for special perks and privileges. 

Race

The EEOC’s updated position on race-based harassment provides a broadened view, including harassment based on traits or characteristics commonly associated with specific racial groups, including names, cultural dress, accent or manner of speech, hair texture, and hair styles. 

The EEOC provides several illustrations of race-based harassment, including:

  • Mia is a multiracial employee of Asian, Black, and Pacific Islander origin. Her coworkers call her “exotic” and “Moana,” in addition to other “cute nicknames.” They also tell her she inherited the “best traits,” such as being strong because she is part Pacific Islander, athletic because she is part Black, and smart and articulate because she is part Asian.
  • Chelsea is a Black woman who wears her hair in locs. Chelsea’s supervisor periodically tries to touch her hair, while asking questions about the appearance and texture of her hair. He also tells her that her hair is “untamed” and “unprofessional,” and she could go from “savage to stunning” if she relaxed her hair.

Color

The updated Guidance also reflects the EEOC’s broadened stance on discrimination based on color, explaining that harassment based on an individual’s pigmentation, complexion, skin shade, or tone – such as treating employees with darker complexions differently from those with lighter skin tones even within the same race – constitutes unlawful color-based harassment. 

Religion

Finally, the EEOC clarifies its stance on harassment based on religion, noting that such harassment includes the explicit or implicit coercion of employees to engage in religious practices at work, or where an employee attempts to impose their religious views on a colleague despite their objections. 

The Guidance provides an example of harassment based on religious coercion in which a Christian employee is denigrated in her religious tenets by her boss, a self-described “spiritual guru,” who distributes religious literature to the employee, expresses his “strong hope” that she will attend his religious lunchtime lectures, and acts with favoritism toward those employees who agree with or are receptive to his religious message.

2. Forms of Unlawful Harassment

In addition to clarifying broad coverage of harassment based on various protected characteristics, the Guidance also confirms that unlawful harassment can occur based on stereotypes, and additionally, can be found on intraclass, intersectional, and/or associational bases.

Harassment Based on Stereotypes

The EEOC confirms that unlawful harassment can occur regardless of the harasser’s intent. Pursuant to the Guidance, harassment is based on a protected characteristic if it is based on social or cultural expectations – or stereotypes – regardless of whether the intent is positive, negative, or neutral. The EEOC makes clear that harassment need not be motivated by animus or hostility. 

The Guidance’s examples of unlawful harassment based on stereotypes include comments to an older employee that they should consider retirement to enjoy the “golden years,” and suggestions to a female employee that she consider switching to a part-time schedule to spend more time with her children.

Intraclass Harassment

Consistent with existing law, the Guidance explains that unlawful harassment may occur even where an individual is harassed by a member of the same protected class. For example, intraclass harassment would be found where:

  • A Chinese supervisor berates a Chinese employee for not living up to the standard of an ideal Chinese worker.
  • A 50-year old supervisor repeatedly refers to a 60-year old employee as “old man” and “over the hill.”
  • A female coworker tells another female employee that she should not expect to “move up the career ladder with all those children.”

Intersectional Harassment 

The Guidance includes an explanation on intersectional harassment – or harassment based on the intersection of two or more protected characteristics – and notes that this type of harassment may compound the harm. In support of its position, the EEOC references two cases – one in which a court recognized intersectional discrimination against an Asian woman, despite favorable consideration of an Asian man and a White woman; and another where a court noted that discrimination against Black women can exist even in the absence of discrimination against Black men or White women. 

Additionally, the EEOC points out that harassment based on one protected characteristic may overlap with harassment based on another characteristic because of an actual or perceived close association between the two protected groups, such as national origin and religion. 

Associational Harassment 

The Guidance addresses associational harassment – a form of harassment based on an individual’s association with someone in a protected class – and makes clear that, although the association often involves a close relationship, the degree of closeness is irrelevant. 

The Guidance provides examples of conduct considered associational harassment, including:

  • Harassment of a White employee because his spouse is Black.
  • Harassment of a Black employee because she has a biracial child.
  • Harassment of an employee for working remotely and taking paid time off to care for his spouse with long COVID.

3. Virtual Work and Social Media

Finally, in recognition of the evolving workplace, the Guidance tackles the rise of the remote workforce and use of social media.

Virtual Work

Based on the Guidance, harassing conduct within a virtual work environment is deemed to occur in the workplace if it is conveyed through work-related communication systems, accounts, devices, or platforms, including an employer’s email system, electronic bulletin board or intranet, instant messaging system, videoconferencing technology, public website or official social media account, or other similar services or technologies. The EEOC’s examples of harassment in a virtual workplace that contribute to a hostile work environment include harassing comments made in a group chat and offensive images visible to other employees during a video meeting.

Social Media

Although employers generally are not responsible for conduct that occurs in a non-work-related context, the Guidance explains that employers may be liable for conduct perpetrated through social media where the consequences of the conduct impact the workplace and contribute to a hostile work environment. 

Based on the Guidance, such conduct includes electronic communications through private phones, computers, or social media accounts. However, the EEOC notes that, generally, postings on a social media account alone, will not contribute to a hostile work environment if the posting does not target the employer or its employees. 

Employer Takeaways

Shortly after the Guidance was published, a group of 18 attorneys general from Republican states filed a lawsuit against the EEOC challenging the constitutionality of its expanded protections related to gender identity, and citing concerns that several states have laws that contradict the Guidance, including a Tennessee law that prohibits public schools from allowing members of the opposite biological sex to enter multiple-occupancy bathrooms while others are present. Additional concerns include considerable costs to align their current anti-bias policies with the Guidance and interference with the states’ ability to promote their “preferred gender ideology.”

Notwithstanding this legal challenge (and others likely on the horizon), employers should consider the Guidance as an indication of the EEOC’s intended approach to harassment cases brought before it. Accordingly, employers are advised to take the following important steps to mitigate risk and address key elements the EEOC considers necessary to establish that the employer exercised reasonable care to prevent and address harassment:

  1. Update and Implement Policies: Update and ensure implementation of anti-harassment policies to include components necessary for effectiveness per the Guidance, including supervisor-reporting responsibilities and points of contact, and complaint procedures that provide for prompt investigations, corrective action, and confidentiality and anti-retaliation protections.
  2. Provide Training: Require training on a regular basis for all employees within the Guidance’s broad definitions of harassment, and, in particular, furnish supervisors and managers with information they need to prevent, identify, report, and address potential complaints of harassment.
  3. Investigate and Take Appropriate Corrective Action: Thoroughly investigate all employee complaints and take prompt corrective action, as appropriate.


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