EEOC: Final Guidance on Workplace Harassment

EEOC: Final Guidance on Workplace Harassment

On April 29, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) released the final version of its updated workplace harassment guidelines for employers. This marks the first significant revision of the EEOC's stance on legal standards and employer liability under federal antidiscrimination laws in over twenty years.

The new document, "Enforcement Guidance on Harassment in the Workplace," addresses several critical issues. It refines the EEOC's position after considering nearly 40,000 comments on the proposed guidance from October 2, 2023. EEOC Chair Charlotte Burrows emphasized the updated guidance's comprehensive nature, noting its role in consolidating best practices and clarifying recent legal developments.

Critical updates in the guidance reflect the U.S. Supreme Court's 2020 decision in Bostock v. Clayton County, Georgia. This ruling affirmed that Title VII of the Civil Rights Act of 1964, which prohibits gender discrimination, extends to discrimination based on sexual orientation and gender identity.

Additionally, the guidance addresses workplace protections related to pregnancy, childbirth, and related medical conditions, in line with the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). This includes EEOC's final PWFA guidance issued on April 15, 2024.

The final guidance provides more than seventy hypothetical examples of potential unlawful harassment. The amount of examples is significant for employers as it provides not only great insight, but modern application. The report mentions both hybrid and remote workers and the widespread use of electronic communication and social media.

Covered Harassment

The EEOC's updated guidance clarifies what constitutes covered harassment under Title VII and other federal antidiscrimination laws.

Race and Color

The new guidance expands on harassment based on "color," treating it as a distinct category from race or national origin. It explains that color-based harassment—stemming from an individual's pigmentation, complexion, or skin tone—is independently covered under Title VII.

For example, the guidance provides a situation where a supervisor treats Black employees with varied skin tones differently. Although employees are the same race, bias and discrimination can still happen based on skin color.

Pregnancy, Childbirth, or Related Medical Conditions

Harassment related to pregnancy, childbirth, or associated medical conditions can include issues like lactation, contraceptive use, and decisions regarding abortion if linked to the targeted individual's sex. The guidance provides new hypothetical examples, such as negative comments directed at a pregnant employee who was allowed flexible scheduling due to pregnancy-related morning sickness or inappropriate behavior towards a female worker using a lactation room.

Sexual Orientation and Gender Identity

The guidance reaffirms that discrimination based on sexual orientation or gender identity is unlawful sex-based discrimination under Title VII. Discrimination includes harassment like epithets or physical assaults. It also includes "outing" someone without their consent, and other conduct based on non-conformity to gender stereotypes.

Moreover, it highlights that repeated, intentional misgendering of individuals, or denying access to facilities consistent with an individual's gender identity constitutes harassment.

Genetic Information

The EEOC clarifies that harassment under the Genetic Information Nondiscrimination Act (GINA) includes harassment based on an individual's or their family's genetic tests or medical history. An example includes harassing an employee because their family member was hospitalized due to a severe illness.

Retaliatory Harassment

The guidance introduces a section on "retaliatory harassment," clarifying that retaliatory actions, even if not severe enough to create a hostile work environment, can still be challenged if they deter a reasonable person from engaging in protected activities.

Intraclass and Intersectional Harassment

Examples of "intraclass" harassment include derogatory comments from a supervisor of the same protected category, such as age. "Intersectional" harassment involves targeting based on multiple protected categories, like a female worker facing comments about menopause which combines age and sex discrimination.

Reporting Procedures, Complaint Process, and Training

The final guidance details effective anti-harassment policies, complaint processes, and training programs. It omits previous references to "minimum" standards but maintains the substantive content.

Regarding remedial measures, the final guidance notes that employers have various options to address harassment, which may vary depending on who engages in the conduct and where it occurs.

Next Steps

Despite potential legal challenges, employers should review and update their workplace policies to mitigate liability risks, especially concerning LGBTQ+ employees. Employers should also consider varying state or local laws that may differ from federal guidelines.

In addition to the new guidance, the EEOC has released a "Summary of Key Provisions" and a fact sheet for small businesses to provide employers with further information.