On April 29, the U.S. Equal Employment Opportunity Commission (EEOC) published its long-anticipated Enforcement Guidance on Harassment in the Workplace. The new guidance, the first issued by the EEOC on this topic in more than 30 years, supersedes five previous guidance documents issued in the 1980s and 1990s and provides updated information as to what constitutes workplace harassment. It also addresses the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, Georgia in which the Court determined that Title VII of the Civil Rights Act protects employees from discrimination on the basis of their sexual orientation and gender identity.
Consistent with this decision, the EEOC now specifically recognizes potentially unlawful workplace harassment against LGBTQ+ individuals. In particular, examples of such harassing conduct include “outing” someone, meaning disclosing their sexual orientation or gender identity without permission, or harassment towards someone because they do “not present in a manner that would stereotypically be associated with that person’s sex.”
The EEOC’s updated guidance also addresses harassment on the basis of pregnancy, including harassment related to breastfeeding, morning sickness, contraception, and the decision to get or not to get an abortion.
The new guidance sets forth more than 70 examples of harassing conduct. Notably, many of these fact patterns involve online harassment because, as the EEOC noted, it has found that harassing conduct persists even when employees work from home. Further examples involve intersectional harassment – mistreatment based on two or more protected characteristics, as well as interclass harassment – which occurs when a harasser mistreats someone based on a protected trait or characteristic they both share. The guidance also provides examples of harassment based on an erroneous belief that a person falls into a particular protected category, such as an incorrect belief that someone is of a particular
national origin or has a particular sexual orientation.
The updated guidance further addresses the potential for employer liability for harassment that is not directed at the complaining employee. In so doing, the EEOC clarified that an employee may complain of harassing conduct directed at another employee because the misconduct can affect the complaining employee’s working environment.
The EEOC’s guidance is effective immediately. However, it is important to note that the EEOC’s guidance is not governing law. Still, it will certainly be used as a resource by EEOC staff, courts, and attorneys. Employers should become familiar with the new guidance, as it will likely also be used by employees to inform allegations of unlawful workplace harassment in the future. To that end, the guidance provides features of what the EEOC believes to be an effective anti-harassment policy, an effective complaint process, and effective anti-harassment training.
Employers should take this opportunity to ensure that their employee handbooks and employment policies comply with these new standards and should also consider offering updated anti-harassment training consistent with the EEOC’s updated guidance. Please contact one of Calfee’s labor and employment attorneys with questions or for assistance with taking these steps.
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