New Guidance from the EEOC About Harassment in the Workplace

On October 2, 2023, the Equal Employment Opportunity Commission (EEOC or “the Commission”) published its long-anticipated Proposed Enforcement Guidance on Harassment in the Workplace. It is consistent with the Commission’s Strategic Enforcement Plan Fiscal Years 2024-2028 published in September and includes new explicit protections for women, LGBTQ+ individuals, people living with disabilities, those with a criminal history, and others.  

An update is overdue

If and when this guidance becomes final, it will be the EEOC’s first update on the topic of harassment since it published Enforcement Guidance on Vicarious Liability for Unlawful Harassment by Supervisors in 1999. That was a long time ago.

So much has happened — both culturally and in the courts — over the past 20+ years, and the new guidance aligns the concept of harassment with evolving workplace and employment case law, including the U.S. Supreme Court’s June 2020 decision in Bostock v. Clayton County. That decision held that the prohibition on sex discrimination — found in Title VII of the 1964 Civil Rights Act — extends to discrimination based on sexual orientation and gender identity.

The new guidance provides examples of what the EEOC considers workplace harassment, which reflects the Commission’s current position about harassment based on transgender identity, harassment involving social media and other types of online content, and harassment in remote working situations. The guidance also makes it clear that sex-based harassment includes discrimination against an employee based on medical conditions related to pregnancy and childbirth, including abortion. This policy aligns closely with the provisions of the Pregnant Workers Fairness Act (PWFA), which became effective in June 2023.

Public comment on the Proposed Enforcement Guidance on Harassment in the Workplace is open through November 1, 2023. Comments can be submitted online through the federal government’s e-regulation portal.

Employers should take note

Employers are advised to use the new guidance to review and revise their policies to reflect the current legal landscape. While not legally binding at this time, the guidance provides valuable insight into how the Commission will treat workplace harassment claims in the future. The guidance is also helpful for anticipating potential harassment disputes before they arise and developing more effective anti-harassment policies.  

If you have any questions or concerns about harassment in your workplace — or are currently dealing with a harassment claim — don’t hesitate to contact Orr & Reno for assistance. 

About the authors: Steven L. Winer and Lynnette Macomber

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