EEOC’s Proposed Guidance on Workplace Harassment: What You Need to Know

The Equal Employment Opportunity Commission (EEOC) has proposed new guidance on workplace harassment. It was published on October 2, 2023 and is open to public comment until November 1; you can read the full guidance here.

Many have waited for updated guidance from the EEOC for a long time since its last guidance was published in 1999. The EEOC submitted a proposed guidance in 2017, but it was not finalized. If it does become final, then that document will supersede the previous guidance and serve as the EEOC’s official position on current issues.

What Does the Proposed Guidance Address?

Much has changed since 1999, including shifts in cultural norms, the emergence of new workplace issues, and changes in the law that affect employment and what constitutes harassment. The guidance comes not many years after the Supreme Court’s decision in Bostock v. Clayton County, which held that an employer may not discriminate on the basis of sexual orientation or gender identity. It addresses guidance on protected characteristics and whether harassment results in discrimination. Harassment is not a new problem, so the guidance also addresses systemic harassment; recall the #MeToo movement, which brought attention to the prevalence of sexual harassment in the workplace.

The possibility for virtual workplace harassment was not a consideration at the time of the last released guidance. But since the rise of remote work (thanks in part to Covid-19 as well as an increased use of technology) and people’s increased use of social media, virtual or online harassment is a reality that requires guidance and clarity. Harassment may occur within a virtual work environment when conduct is conveyed using work-related communications systems, accounts, or platforms, and off-work activity can also target co-workers.

The provided guidance clarifies the legal criteria and employer liability regarding harassment allegations within the federal employment discrimination laws upheld by the EEOC. It even offers examples to demonstrate scenarios of workplace harassment, so employers have practical guidance.

What is Harassment?

Harassment is defined as unwelcome conduct that is based on race, color, religion, sex (including sexual orientation, gender identity, or pregnancy), national origin, disability, age (40+), or genetic information (including family medical history).

Small annoyances or isolated incidents are not unlawful under federal law (unless an isolated incident is extremely serious). Otherwise, harassment becomes unlawful where:

1. enduring the offensive conduct becomes a condition of continued employment, or
2. the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

Some examples of workplace harassment include unwelcome sexual advances, offensive jokes, slurs, or name-calling, physical assaults or threats, intimidation, offensive photographs or objects, etc.

Workplace harassment is not just something the EEOC offers non-binding guidance on; rather, it violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), and the Americans with Disabilities Act of 1990 (ADA) and opens employers up to liability.¹

Unlawful harassment falls into one of two categories: quid pro quo harassment or harassment that creates a hostile work environment.

• Quid pro quo harassment usually involves a person in a position of authority requiring “something for something” (the Latin translation)—an example of this would be a supervisor firing or demoting an employee who rejected his or her sexual advances.
• Hostile work environment harassment occurs when the behavior is severe or pervasive enough to create a work environment that a reasonable person would find hostile.

Notable Mentions from the Proposed Guidance

The Seemingly All-Encompassing Sex-Based Harassment

Harassment based on sex is only one of the types of harassment that occurs; however, sexual harassment charges accounted for 27.7% of all harassment charges between 2018-2021, 78.2% of which were filed by women.² The “sex” classification or status includes unwanted sexual attention or coercion as well as non-sexual conduct based on sex such as sexist comments or language, or even sex-neutral offensive conduct motivated by sex.

Conduct also constitutes sex-based harassment if it is based on pregnancy, childbirth, or related medical conditions, including lactation; harassment based on reproductive decisions is included, such as contraception use³ or abortion.⁴ Sex-based harassment extends to sexual orientation and gender identity too. This could include epithets regarding sexual orientation or gender identity, conduct because a person does not fit into gender stereotypes, intentional and repeated “misgendering,” or denial of bathroom access to facilities consistent with an individual’s gender identity (but opposite from their biological sex). Physical assault because of sexual orientation or gender identity also constitutes sex-based harassment.

Employer Liability for Harassment Claims

If an employee establishes that quid pro quo harassment occurred (harassment connected to an explicit change to a term, condition, or privilege of employment), the employer is automatically liable. In cases of a hostile work environment, the level of employer liability depends on the harasser’s role and the nature of the situation. Regardless of the harasser’s status, the negligence standard sets the minimum level of employer responsibility.

• If the harasser is linked closely to the employer, like a supervisor or someone acting on behalf of the employer, the employer is usually held responsible without a defense.
• If the harasser is a supervisor and there is a negative job-related consequence for the victim, the employer is automatically liable.
• If the harasser is a supervisor but there is no tangible job-related consequence, the employer may limit its liability if it can prove the Faragher-Ellerth affirmative defense around training and reporting.
• If the harasser is not closely associated with the employer, the employer is liable if it failed to reasonably prevent or address the harassment but can also use the Faragher-Ellerth affirmative defense that it did do this.⁵

How Does this Guidance Help Business Owners?

Having clear guidance on an issue like harassment in the workplace removes confusion and ambiguity. Ultimately, business owners and those in leadership can use the knowledge to take steps toward preventing harassment and properly addressing it when it does occur. Additionally, dealing with harassment claims is time-consuming and costly, so avoiding them is a benefit to all.

Employers will want to work carefully with legal counsel about their policies. This is particularly true for religious organizations, faith-based employers, and employers dealing with faith-based employees, because rights related to free exercise of religion may also be at play when dealing with sensitive issues such as bathroom access and pronoun use.

How Can Employers Prevent Harassment in the Workplace?

The EEOC has created various resource documents that provide practical tips for preventing and addressing harassment.⁶ The EEOC recommends leadership that is committed and engaged, consistent and demonstrated accountability, strong and comprehensive harassment policies, trusted and accessible complaint procedures, and regular, interactive training tailored to the audience and the organization.⁷

In addition, Christians or religious organizations have a moral obligation to reduce the likelihood of harassment in their workplace and to shut it down quickly and fairly when it happens. Christian employers can achieve this by fostering a work culture of respect and care for one another, emphasizing Christian values of love, compassion, and treating all with dignity.

Conclusion

The EEOC’s proposed guidance on harassment in the workplace will remain open to public comment until November 1, at which point the agency will review comments and either proceed with the process, modify it, or withdraw it. The proposed guidance offers examples, resources, and information about an employer’s obligations. Employers should review their harassment policies carefully, ensuring all provisions are in line with the new guidance. Offering updated training to Human Resources, leadership, and all employees should be considered to prevent harassment and reduce the likelihood of liability.

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¹ Harassment | U.S. Equal Employment Opportunity Commission (eeoc.gov)

² Sexual Harassment in Our Nation’s Workplaces | U.S. Equal Employment Opportunity Commission (eeoc.gov)

³ See EEOC, Enforcement Guidance on Pregnancy Discrimination and Related Issues § I.A.3.d (2015), https://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm#IA3d

⁴ Id. § I.A.4.c

⁵ The Faragher-Ellerth affirmative defense can help employers avoid liability for alleged unlawful harassment. The defense was first stated in the Supreme Court’s cases of Faragher v. Boca Raton (1998) and Burlington Industries, Inc. v. Ellerth (1998).[5]

The defense is available when the employer can prove:

1. That the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and
2. That the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm.

⁶ https://www.eeoc.gov/laws/guidance/promising-practices-preventing-harassment

⁷ See Chai R. Feldblum & Victoria A. Lipnic, EEOC, Select Task Force on the Study of Harassment in the Workplace, Report of Co-Chairs Chai R. Feldblum & Victoria A. Lipnic (2016), https://www.eeoc.gov/june-2016-report-co-chairs-select-task-force-study-harassment-workplace

Featured Image by Rebecca Sidebotham.