Almost seven months after seeking public comment on an initial
proposed version, and more than seven years after first attempting
to update its guidance on the issue, the Equal Employment
Opportunity Commission issued on Monday, April 29, 2024, its final
Enforcement Guidance on Harassment in the Workplace, incorporating
major legal and social developments that have dramatically altered
the landscape for employers and employees nationwide in recent
years.
1 Specifically, the final Enforcement Guidance
addresses, among other issues, harassment based on sexual
orientation and gender identity, intersectional harassment based on
multiple protected characteristics, intraclass harassment based on
one or more protected characteristics shared by the perpetrator and
the victim, remote work and online harassment, and third-party
harassment by individuals other than an employee’s supervisors
or coworkers.
Background of new regulations
Workplace harassment has been a priority policy issue for the
commission for the better part of the last decade, with over half
of all federal equal employment opportunity complaints filed since
fiscal year 2018 involving allegations of unlawful harassment,
according to the commission. In January 2015, the commission
announced the creation of a 16-member Select Task Force on
Harassment in the Workplace whose objective was to study workplace
harassment “in all of its forms” and recommend best
practices for prevention.
2 Following presentation of the Report of the
Co-Chairs of the Select Task Force in June 2016, the commission
released its first proposed Enforcement Guidance on Unlawful
Harassment in January 2017 and invited public comment.
3 However, the Trump administration began prior to
the conclusion of the period for public comment, and the 2017
proposed guidance did not proceed further.
Since then, the #MeToo movement’s campaign against sexual
harassment and sexual violence, as well as the explosive rise in
remote work following the COVID-19 pandemic, have significantly
impacted workplaces nationwide. Moreover, the prior proposed
guidance was issued prior to the United States Supreme Court’s
opinion in Bostock v. Clayton Cnty., Georgia, 590 U.S.
644, 683, 140 S. Ct. 1731, 1754, 207 L. Ed. 2d 218 (2020), which
confirmed that Title VII’s protections against harassment
extend to harassment based on sexual orientation and gender
identity.
4
Current EEOC Chair Charlotte A. Burrows, who as a commissioner
voted to approve the prior 2017 guidance, says the final
Enforcement Guidance issued this week addresses “both
in-person and online [harassment] [,]” “brings together
best practices [,]” and “clarifies recent developments in
the law.”
5 The final Enforcement Guidance was approved by a
majority of the five-person commission, with voting following along
party lines, approximately twenty-five years after the commission
last issued guidance on the issue in June 1999. The final
Enforcement Guidance supersedes all prior guidance documents issued
by the commission between 1987 and 1999.
6
Examples illustrate EEOC’s current view of workplace
harassment
The final Enforcement Guidance was issued by the commission
after receiving approximately 38,000 public comments in the fall of
2023 and includes more than 70 examples of scenarios the commission
considers illustrative of unlawful harassment.
7 These examples include such scenarios as a manager
making repeated comments regarding an employee’s natural hair;
consensual workplace relationships resulting in less favorable
treatment to other workers; the repeated and intentional
misgendering of a transgender employee by management, coworkers,
and customers; repeated, unwelcome religious proselytizing by a
coworker; and sexual advances made by a coworker during an
employer-sponsored holiday party held offsite. The final
Enforcement Guidance also sets out the commission’s position
that “the denial of access to a bathroom or other
sex-segregated facility consistent with the individual’s gender
identity[,]” “sexist comments made during a video
meeting, ageist or ableist comments typed in a group chat, racist
imagery that is visible in an employee’s workspace while the
employee participates in a video meeting, or sexual comments made
during a video meeting about a bed being near an employee in the
video image” may constitute unlawful harassment.
At the same time, the final Enforcement Guidance also includes
examples of workplace conduct the commission acknowledges would not
rise to the level of unlawful harassment, such as hostile and rude
conduct by a coworker not linked by evidence to any protected
characteristic; a single offensive remark about menstruation made
to a female coworker during a heated disagreement; religious
expression in the workplace that is not targeted at another
individual despite objections; and postings on personal social
media accounts that do not target the employer or its employees or
have an impact on an employee’s work environment.
Bottom line for employers
As the agency tasked with enforcing federal antidiscrimination
laws, the EEOC’s position with regard to unlawful harassment
and the many legal issues associated with harassment claims and
defenses, as set forth in the final Enforcement Guidance, is an
important resource for employers to consider when evaluating
current compliance programs and efforts to prevent and address
unlawful harassment in the workplace. And the new rules certainly
should be helpful in predicting what the EEOC may conclude
regarding whether harassing conduct alleged in an EEOC charge rises
to a violation of the law.
However, as the EEOC itself has stated, the final Enforcement
Guidance “do[es] not have the force and effect of law, [is]
not meant to bind the public in any way, and do[es] not obviate the
need for the EEOC and its staff to consider the facts of each case
and applicable legal principles when exercising their enforcement
discretion.”
8 In other words, the EEOC is not binding itself to
its own guidance and could end up expanding or contracting its
definitions of unlawful harassment with respect to a particular
matter. In addition, federal district courts are not bound by the
new EEOC regulations and may have a different view of whether
alleged harassing conduct violates the law.
Bottom line, employers should not view the final Enforcement
Guidance as a universally applicable, paint-by-number guide to
compliance. However, to mitigate risk, employers generally will
want to maintain anti-harassment policies that go beyond what the
law requires. In addition, an anti-harassment policy which mirrors
the EEOC’s most recent guidance on the topic will likely be
viewed favorably by both the EEOC and the courts when assessing an
employer’s culpability for alleged workplace harassment.
Accordingly, employers may wish to revise their current policies
with the new EEOC rules in mind, even including some of the
examples offered by the EEOC as a guide to employees. With regard
to drafting compliant policies and assessing and defending claims
of harassment, employers should consult with an experienced
employment attorney for advice regarding their particular
circumstances. Butler Snow’s Labor & Employment group
members are ready to assist if needed.
Footnotes
1 Enforcement Guidance on Harassment in the Workplace,
No. 915.064 (Apr. 29, 2024), available at https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace.
2 Press Release, Equal Employment Opportunity Commission,
EEOC to Study Workplace Harassment: Select Task Force of Academics,
Practitioners and Stakeholders To Study How To Address And Prevent
All Types of Workplace Harassment (Mar. 30, 2015), https://www.eeoc.gov/newsroom/eeoc-study-workplace-harassment.
3 Press Release, Equal Employment Opportunity Commission,
EEOC Seeks Public Input on Proposed Enforcement Guidance on
Harassment (Jan. 10, 2017), https://www.eeoc.gov/newsroom/eeoc-seeks-public-input-proposed-enforcement-guidance-harassment.
4 “We do not hesitate to recognize today a necessary
consequence of that legislative choice: An employer who fires an
individual merely for being gay or transgender defies the
law.” Id.
5 Press Release, Equal Employment Opportunity Commission,
EEOC Releases Workplace Guidance to Prevent Harassment: Builds on
Previous Work, Addresses Legal Developments and Emerging Issues,
Including Virtual Work Environments (Apr. 29, 2024), https://www.eeoc.gov/newsroom/eeoc-releases-workplace-guidance-prevent-harassment.
6 Enforcement Guidance on Harassment in the Workplace,
No. 915.064 (Apr. 29, 2024), available at https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace.
7 Press Release, Equal Employment Opportunity Commission,
EEOC Releases Workplace Guidance to Prevent Harassment: Builds on
Previous Work, Addresses Legal Developments and Emerging Issues,
Including Virtual Work Environments (Apr. 29, 2024), https://www.eeoc.gov/newsroom/eeoc-releases-workplace-guidance-prevent-harassment.
8 Enforcement Guidance on Harassment in the Workplace,
No. 915.064 (Apr. 29, 2024), available at https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace.
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.
#EEOC #Updates #Harassment #Guidance #Time #Years #Employee #Rights #Labour #Relations
