EEOC Updates Workplace Harassment Guidance

 On April 29, 2024, EEOC released an update to it's enforcement guidance on harassment in the workplace.  With the emergence of new issues, such as online harassment, it was time for an update.

 

The guidance replaces five prior guidance documents on workplace harassment issued by the agency between 1987 and 1999.  The EEOC highlighted a number of notable changes since then, such as Title VII's prohibition on discrimination “because of sex” includes discrimination on the basis of sexual orientation and gender identity.

 

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 In October 2023, the agency published revised draft guidance, prompting roughly 38,000 comments.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:

 

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.
 

• Covered Bases and Causation: Was the harassing conduct based on the individual’s legally protected characteristic under the federal EEO statutes?
• Discrimination with Respect to a Term, Condition, or Privilege of Employment: Did the harassing conduct constitute or result in discrimination with respect to a term, condition, or privilege of employment?
• Liability: Is there a basis for holding the employer liable for the conduct?

 

This guidance also addresses systemic harassment and provides links to other EEOC harassment-related resources.

 

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.”

You can read more about this guidance here.

Source(s): Littler, received on April 30, 2024; EEOC, accessed on May 10, 2024.