EEOC Releases Updated Enforcement Guidance On Harassment In The Workplace – Employee Rights/ Labour Relations

On April 29, 2024, the Equal Employment Opportunity Commission
(EEOC) issued its updated Enforcement Guidance on Harassment
in the Workplace. The guidance, which is effective immediately,
supersedes a series of five guidance documents issued by the EEOC
in the 1980s and 1990s, and follows on the proposed guidance
released by the EEOC for public comment in October 2023. Although
the EEOC notes that the guidance does “not have the force and
effect of law,” the statement accompanying the release
describes the guidance “as a comprehensive resource that
brings together best practices for preventing and remedying
harassment and clarifies recent developments in the law.”

The guidance provides significant insight into the EEOC’s
current view of what constitutes “harassment based on race,
color, religion, sex, national origin, age, disability [and]
genetic information” and the standards to be applied in
determining employer liability―a view that is informed not
only by intervening changes in the law, but also by technological
changes impacting workplaces, including electronic communications,
remote work and even AI (in the form of potential “deep
fake” intimate images). The guidance is
extensive―running at almost 150 pages with 387
footnotes―and includes more than 75 detailed examples of
potentially harassing conduct, which remains a key concern for the
EEOC (which notes that approximately 35 percent of the merits
lawsuits it brought in fiscal year 2023 included a harassment
allegation).

Importantly, as we noted in our previous Alert on the proposed guidance in October
2023, the guidance serves as a reminder that employers need to look
beyond sexual harassment when assessing their harassment prevention
programs. For instance, although there is no federal Create a
Respectful and Open World for Natural Hair (CROWN) Act (and only a
minority of states have such an act), one of the examples provided
examines comments about the appearance of Black hair that the EEOC
considers race-based harassment. Other examples consider harassment
based on:

• Color, even independent of any reference to race or national
  origin;




• Religion, including proselytizing, anti-Semitic comments and
  comments aimed at a religious accommodation;




• Sex, including sex-based harassment aimed at men, with one
  example dealing with co-worker harassment of an individual based on
  his vasectomy;




• Pregnancy and pregnancy-related medical conditions, including
  lactation; and




• Disability, including harassment based on the fact of a
  disability accommodation, as well as associational discrimination
  based on an employee’s relationship with a family member with
  long COVID.

Two examples consider harassment based on gender identity and,
specifically, treatment of transgender employees, including such
conduct as a manager’s attempts to dictate what they consider
gender-appropriate attire for a transgender employee, questions
about a transgender employee’s anatomy and
“misgendering” of an employee (defined as “repeated
and intentional use of a name or pronoun inconsistent with the
individual’s known gender identity”).

The guidance further takes the position that “outing”
an individual―that is, revealing either their sexual
orientation or gender identity without permission―would
constitute sex-based harassment, as would denying an individual
access to a bathroom or other sex-segregated facility consistent
with the individual’s gender identity. The EEOC is silent on
the potential privacy issues employees may raise in connection with
bathroom use and gives no hint as to what other
“sex-segregated” facilities it is referring. We
anticipate litigation with regard to this issue.

Although not the subject of a detailed example, the guidance
also expressly notes that harassment aimed at an individual for the
decision to have (or not to have) an abortion constitutes sex-based
harassment―an approach consistent not only with the October
2023 proposed guidance but with the inclusion of abortion within
the definition of “pregnancy, childbirth, or related medical
condition” in the final rule and interpretive guidance
implementing the Pregnant Workers Fairness Act, which the EEOC issued earlier in April.

The EEOC makes clear that conduct within a virtual work
environment also may contribute to a hostile work environment. The
guidance provides the following examples of harassing conduct in
the virtual workplace:

• 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; and




• Sexual comments during a video meeting about a bed being near
  an employee in the video image.

The guidance flags that harassment based on
“perception”―even if incorrect―may be
actionable, providing the example of a Hispanic person harassed
because they are believed to be Pakistani as national origin
harassment and a Sikh being harassed because they are believed to
be Muslim as religious harassment.

In addition, the guidance emphasizes that “intraclass”
harassment is actionable―providing such examples as:

• A 52-year-old supervisor repeatedly commenting on the age of a
  65-year-old employee;




• An employee of Chinese ancestry berating a co-worker of Chinese
  ancestry for failing to live up to her expectations of a Chinese
  worker; or




• A female employee repeatedly commenting to her female
  co-workers with and without children, respectively, that mothers
  should not work outside the home and expressing negative views of
  women who do not want children.

The guidance also tackles the subject of “retaliatory
harassment,” which it notes can be challenged even if it is
not sufficiently severe or pervasive to alter the terms and
conditions of employment by creating a hostile work
environment.

And, critically, the guidance provides a “non-exhaustive
list” of conduct that has been found sufficiently severe to
establish a hostile work environment based on a single incident.
Those are:

• Sexual assault;




• Sexual touching of an intimate body part;




• Physical violence or the threat of physical violence;




• The display of symbols of violence or hatred, such as a
  swastika, an image of a Klansman’s hood or a noose;




• The use of denigrating animal imagery, such as comparing the
  employee to a monkey, ape or other animal;




• A threat to deny job benefits for rejecting sexual advances;
  and




• The use of the “n-word” by a supervisor in the
  presence of a Black subordinate.

This aspect of the guidance is obviously relevant in determining
appropriate corrective action.

The guidance also includes “best practices” with
regard to anti-harassment policies, complaint procedures, training,
investigations, corrective action and other aspects of a holistic
approach to preventing and remedying harassing conduct.

Despite its length and detail, however, the guidance falls short
in two key aspects. First, although commenters urged the EEOC to
“clarify the interplay between… employers’ obligations
to address workplace harassment under federal employment
discrimination laws and to comply with the National Labor Relations
Act,” it declined to do so, stating simply that “[a]
discussion of the interaction of EEO laws with the [NLRA] is beyond
the scope of this guidance.”

Second, while noting that employers have a duty to accommodate
employees’ sincerely held religious beliefs (and signaling a
willingness to consider “defenses based on religion”),
the guidance fails to offer much concrete advice for balancing that
duty against the duty to prevent harassment. For example, although
this issue has already been the subject of litigation, the guidance
sheds no light on how an employer should respond if an employee
claims that a requirement to use a name or pronoun that does not
conform with an individual’s biological identity at birth
violates the employee’s religious beliefs. Rather, the guidance
merely advises employers, on the one hand, that a religious
accommodation may be required even if it disrupts the
“harmony” of the workplace while, on the other hand, an
employer cannot tolerate “religious expression that creates,
or threatens to create, a hostile work environment.” The
guidance does suggest there may be more to come from the EEOC,
though, particularly on the subject of pronoun use in the context
of religious accommodations, pending a final decision in a case out
of the Seventh Circuit Court of Appeals.

Even with these gaps, the guidance provides valuable information
for employers to audit and upgrade their policies and practices to
prevent and remedy harassing conduct. However, employers must keep
front of mind the agency’s caution that “even the best
anti-harassment policy, complaint procedure, and training will not
necessarily establish that the employer has exercised reasonable
care to prevent harassment—the employer must also implement
these elements effectively.” In other words, employers need to
look carefully not only at their written policies but at their
actual practices in light of the guidance.

About Duane Morris

Our attorneys provide clients advice about the steps
organizations need to take to examine current anti-harassment
policies, practices and training, and to move forward in line with
the legal standards and best practices including those outlined in
the guidance.

For More Information

If you have any questions about this Alert, please
contact Jonathan A. Segal, Patricia McCausland, any of the attorneys in our Employment, Labor, Benefits and Immigration
Practice Group or the attorney in the firm with whom you are
regularly in contact.

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prepared and published for informational purposes only and is not
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