EEOC Finalizes Workplace Harassment Guidance
Jun 25, 2024Although we’ve been anticipating its arrival for several months, when the final document hit the Federal Register at the end of April, it provoked various responses. For the most part, the Equal Employment Opportunity Commission’s (EEOC or “Commission”) updated Enforcement Guidance on Harassment in the Workplace (the “Guidance”) provides a much-needed legal analysis of the standards applicable to workplace harassment and employer liability under federal anti-discrimination laws, at least from the EEOC’s perspective.
The EEOC received almost 38,000 comments about the proposed Guidance released last fall. Most of these comments focused on the EEOC’s presentation and inclusion of what the current Commission considers emerging protected classes under Title VII of the Civil Rights Act of 1964. For example, the updated Guidance recognizes the rights of transgender employees and employees dealing with issues related to pregnancy and abortion.
On May 13, 2024, a group of state attorneys general filed a complaint in the Eastern District of Tennessee (State of Tennessee et al. v. Equal Employment Opportunity Commission et al.), challenging the Guidance and seeking injunctive and declaratory relief. The State of Tennessee et al. are objecting to the Commission “extending Title VII’s protections against sexbased discrimination to new contexts related to ‘gender identity.’”
The Guidance is effective immediately and supersedes five guidance documents issued by the EEOC in the 1980s and 1990s.
A Resource
While noting that the Guidance does “not have the force and effect of law,” the EEOC clarifies that the document “brings together best practices for preventing and remedying harassment and clarifies recent developments in the law.” Employers are encouraged to consider this Guidance as a new reference point for understanding how the EEOC is currently interpreting what harassment is and isn’t when discrimination charges are made.
The Guidance is comprehensive—almost 150 pages and 387 footnotes—with more than 75 detailed examples of potentially harassing conduct. It addresses emerging workplace issues like online and virtual harassment and workplace protections for harassment based on sex, including medical conditions related to pregnancy, sexual orientation, and gender identity. The Guidance also explores the interplay between claims of harassment and religion-based rights.
For employers and their attorneys, the document presents the EEOC’s legal analysis of “standards for harassment and employer liability applicable to claims of harassment under the equal employment opportunity (EEO) statutes enforced by the Commission,” including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA).
Highlights
The Guidance provides valuable information for employers to use when auditing and upgrading their internal employment policies. The EEOC also encourages employers to review not only the policies, but also how these policies are implemented and practiced. Here are a few highlights:
• Sex-Based Harassment under Title VII includes harassment based “on pregnancy, childbirth, or related medical conditions,” which “can include issues such as lactation; using or not using contraception; or deciding to have, or not to have an abortion.” Sex-based harassment also “includes harassment based on sexual orientation or gender identity, including how that identity is expressed,” which can include “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; the 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.”
• Cross Bases Issues are covered in the Guidance. The EEOC describes the concept as “harassing someone because of a mistaken belief that they belong to a certain protected group” (e.g., a Brazilian is harassed by a co-worker because the co-worker thinks he is Pakistani). These issues can also include “associational discrimination” (e.g., when a white employee is harassed for being married to a black man) and “intraclass harassment,” which is explained by the EEOC as harassment where the perpetrator and the victim are in the same protected category, such as when an employee in her 50s harasses a 65-year-old because of her age, or when a woman harasses her female co-workers about their child-bearing choices.
• On Social Media, the EEOC says that if an employee posts offensive material on his or her personal account but does not target co-workers, the post will not normally be considered harassing, even if co-workers see the post and are offended by it. If the post does target a coworker, then it is likely to be considered harassing by the EEOC.
• Religious beliefs should be accommodated, says the EEOC, unless doing so would threaten to create a hostile work environment for other employees. It seems possible that this could apply to employees who have religious objections to using preferred names and pronouns. There are already court cases related to this issue.
For Employers
It would be wise for employers to read at least the EEOC’s summary of the Guidance, and then review their internal harassment complaint policies to determine whether their policies comply with current standards. Many employers will need to provide training, particularly for managers, about how to spot and eliminate harassment. Employee training is also recommended.
If you have any questions or concerns about your current anti-harassment and complaint policies — or about any issue related to employment law and your business — don’t hesitate to contact Orr & Reno for Assistance.
