The Equal Employment Opportunity Commission (EEOC) is working to
finalize its first comprehensive guidance in over two decades to
help employers recognize and prevent prohibited harassment in the
workplace. The guidance is not legally binding but attempts to
clarify the EEOC’s position as to the kinds of conduct that
will be considered discriminatory.
A consistently high number of workplace harassment complaints in
recent years prompted the updated guidance, which incorporates
contemporary developments in workplace discrimination laws. The
guidance includes many hypothetical examples to help employers
create effective policies against workplace harassment.
Workplace Harassment Is an Ongoing Problem
Harassment in the workplace is a type of employment
discrimination that can violate several federal statutes. Over 34%
of the charges received by the EEOC between 2018 and
2022 included allegations of harassment. The EEOC defines
harassment as “unwelcome conduct” based on sex
(including sexual orientation, gender identity, or pregnancy),
race, national origin, color, religion, disability, genetic
information (including family history), and age (40 and up).
Harassment in the workplace violates the law when it becomes a
condition of continued employment. It can also occur when a
coworker’s or manager’s behavior is severe or pervasive
enough to create a work environment that a reasonable person would
consider intimidating, hostile, or abusive.
Prohibited harassment also includes conduct done in retaliation
for making or participating in employment discrimination claims or
lawsuits. The alleged conduct must be significant enough to offend
the sensibilities of a reasonable person. The laws do not intend to
penalize conduct described as petty slights, annoyances, and
non-serious isolated incidents.
What the EEOC Enforcement Guidance Says About Harassment in the
Workplace
The proposed EEOC guidance provides a framework
for determining whether unwelcome conduct in the workplace meets
the requirements for employment discrimination. The guidance
focuses on the three necessary components required to establish a
harassment claim:
- Was the conduct complained of based on a legally protected
characteristic under federal law? - Did the conduct result in discrimination with respect to a
term, condition, or privilege of employment? - Is there a basis for holding the employer liable for the
conduct?
Legally Protected Characteristics
Harassment can only be employment discrimination when the basis
for the conduct is a legally protected characteristic. Legally
protected characteristics include cultural or social expectations
(stereotyping) regarding the actions, appearance, or behavior of a
protected group.
A complainant need only show that the conduct occurred
because of a protected characteristic. The context of the
conduct and the surrounding circumstances are important factors in
determining motivation.
The EEOC says it will enforce what it calls “associational
discrimination” – harassment because a complainant
associates with a member of the same or another protected
group.
Terms, Conditions, and Privileges of Employment
The alleged harassment must affect a term, condition, or
privilege of employment, which the U.S. Supreme Court has said can
include:
- Explicit changes in the terms or conditions of employment
linked to the harassment – such as firing an employee for
refusing sexual advances or - Constructive changes in the terms or conditions of employment
by creation of a hostile work environment
Hostile Work Environment
A hostile work environment is established when unwelcome conduct
is “severe or pervasive” enough to alter a claimant’s
work environment and make it abusive. The determination is based on
all of the contributing circumstances. A hostile work environment
is generally not created by merely offensive conduct that is
boorish, juvenile, or annoying, but it’s not necessary to prove
the conduct was so severe it resulted in psychological harm.
Conduct contributing to a hostile work environment need not
occur in the usual workplace as long as it occurs in a work-related
context. Even conduct that does not occur in a work-related context
can support a hostile work environment if it has an impact on the
workplace.
There are important considerations that are relevant when
deciding whether a hostile work environment exists, including:
- The frequency and severity of the conduct
- The degree to which the conduct was physically threatening or
humiliating - The degree to which the conduct interfered with the
claimant’s work performance - The psychological damage caused by the conduct
The conduct must be both subjectively and objectively unwelcome.
The claimant must prove the conduct was personally unwelcome and
that a reasonable person similarly situated would also conclude
that the conduct would be unwelcome.
Employer Liability Standards
If it is found that an employer made an explicit change to a
term, condition, or privilege of employment linked to harassment,
the employer is liable to the employee for discrimination and has
no defense. Whether the employer is at fault for a hostile work
environment depends on its relationship to the alleged
harasser.
For those with high rank or authority who serve as proxies or
alter egos for the company, their actions are considered the same
as the employer’s. The actions of supervisory personnel (who
are not proxies or alter egos) can create vicarious liability for
an employer.
If a supervisor’s harassment included a “tangible
employment action” (involving a significant change in
employment status), the employer is liable with no defense.
However, if the harassing supervisor did not take a tangible
employment action, an employer may have an affirmative defense to
vicarious liability if it can prove both of the following
conditions:
- The employer acted reasonably to promptly correct and prevent
harassment. - The employee unreasonably failed to use the employer’s
complaint procedure or to take other steps to minimize or avoid the
claimed harm from harassment.
When the harasser is a coworker or non-employee, an employer is
liable only if it is negligent because it unreasonably failed to
prevent the harassment or failed to take reasonable corrective
action in response to harassment about which it knew or should have
known.
How Employers Can Protect Themselves from Employment
Discrimination Claims for Harassment
The EEOC advises employers that the best way to prevent
harassment in the workplace is to create a strong culture of
intolerance. An EEOC study identified five practices that have proven generally
effective at preventing or correcting workplace harassment:
- Communicating a strong commitment to harassment prevention by
senior leadership - Taking immediate and appropriate action on all harassment
claims - Creating a comprehensive and clear harassment policy that is
widely available - Establishing an accessible and impartial harassment complaint
process - Conducting regular anti-harassment training for all
employees
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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