On April 29th, the Equal Employment Opportunity Commission (“EEOC”) published its Enforcement Guidance on Harassment in the Workplace (the “Guidance”). The Guidance consolidates and updates the EEOC’s previous guides issued between 1987 and 1999.

Overview of Guidance

The Guidance reflects the EEOC’s commitment to protecting persons from employment discrimination who are particularly vulnerable and from underserved communities. It is a helpful resource including over 70 examples of unlawful harassment, including situations involving:

• older workers,
• immigrant workers,
• survivors of gender-based violence,
• sexual orientation harassment, and
• virtual harassment.

The latest Guidance is updated to account for evolving legal and practical developments in recent years.  On the legal front, the Supreme Court’s 2020 decision in Bostock v. Clayton County held that sex-based employment discrimination under Title VII of the Civil Rights Act of 1964 includes discrimination based on sexual orientation and gender identity.  The updated Guidance reflects the increasingly virtual employment environment.

Sexual Orientation and Gender Identity

One of the most significant updates, based on the result in Bostock v. Clayton County, is the inclusion of sexual orientation and gender identity under the umbrella of sex-based discrimination under Title VII.

The Guidance notes that sex-based harassing conduct can take the form of “epithets regarding sexual orientation or gender identity; physical assault due to sexual orientation or gender identity; outing (disclosure of an individual’s sexual orientation or gender identity without permission); harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex; repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.”

The Guidance includes the following illustrations of harassing conduct based on sexual orientation and gender identity:

Harassment Based on Sexual Orientation.
Heidi, a staff journalist at a media conglomerate, recently attended a company award ceremony with her wife, Naomi. After the ceremony, one of Heidi’s coworkers, Trevor, approaches Heidi and says, “I did not know you were a d*ke, that’s so hot.” Trevor asks Heidi questions such as, “because you are both girly-girls, who is the man in your marriage?” and “who wears the pants at home?” Trevor also repeatedly sends the scissor emoji and images of scissors to Heidi, which Trevor intends as a euphemism for Heidi having sex with her wife. Based on these facts, Trevor’s harassing conduct toward Heidi is based on her sexual orientation.

Harassment Based on Gender Identity.
Chloe, a purchase order coordinator at a retail store warehouse, is approached by her supervisor, Alton, who asks whether she was “born a man” because he heard a rumor that “there was a transvestite in the department.” Chloe disclosed to Alton that she is transgender and asked him to keep this information confidential.

After this conversation, Alton instructed Chloe to wear pants to work because a dress would be “inappropriate,” despite other purchase order coordinators being permitted to wear dresses and skirts. Alton also asks inappropriate questions about Chloe’s anatomy and sexual relationships. Further, whenever Alton is frustrated with Chloe, he misgenders her by using, with emphasis, “he/him” pronouns, sometimes in front of Chloe’s coworkers. Based on these facts, Alton’s harassing conduct toward Chloe is based on her gender identity.

On May 14, Tennessee, along with seventeen other states, filed a lawsuit in the Eastern District of Tennessee challenging the EEOC’s guidance on gender identity-based harassment.  Their complaint alleges the Guidance is an unlawful expansion of Title VII’s protections.  Whether their challenge will be successful remains to be seen.

Virtual Harassment

Also notable, the new Guidance addresses workplace harassment in virtual work environments:

As with a physical work environment, conduct within a virtual work environment can contribute to a hostile work environment. This can include, for instance, 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.

The Guidance includes the following examples:

Conduct on Employer’s Email System Was Within the Work Environment.
Ted and Perry are coworkers in an architectural firm. Ted is White, and Perry is Black.

Every Monday morning, Ted sends jokes from his work computer and work email account to colleagues, including Perry. Many of the jokes involve racial stereotypes, including stereotypes about Black individuals.

Perry complains to Ted and their mutual supervisor after several weeks of Ted’s emails, but Ted is not instructed to stop and continues to send such emails. Based on these facts, the racial jokes sent by Ted occurred within Perry’s work environment because, among other reasons, they were sent using Ted’s work computer and work email account and were sent to Perry and other colleagues in the workplace.

Conduct on Social Media Platform Outside Workplace Contributes to Hostile Work Environment.
Rochelle, a Black woman born in the United States, works at a tax firm. She alleges that two Black coworkers of Caribbean descent, Martina and Terri, subjected her to a hostile work environment based on national origin.

The investigation reveals that Martina’s and Terri’s harassing conduct included mocking Rochelle, blocking doorways, and interfering with her work, and that it culminated in an offensive post on a popular social media service that they all use. In the post, Martina and Terri included two images of Rochelle juxtaposed with an image of the fictional ape Cornelius from the movie The Planet of the Apes, along with text explicitly comparing Rochelle to Cornelius. Rochelle learned about the post from another coworker, Jenna. Based on these facts, the combined conduct, including the social media post, was sufficient to create a hostile work environment.

How Employers Can Protect Their Workers (And Themselves) From Unlawful Discrimination

Employers may be held liable for the harassing conduct of their customers, contractors and other third parties, in addition to coworkers and supervisors.  However, employer liability may be reduced or eliminated when employers take appropriate steps to reduce the risk that harassment occurs in the first place and take immediate corrective action in the event it does.

The EEOC recommends the following to prevent unlawful harassment:

• Enact a “clear, easy-to-understand harassment policy,” taking into consideration any barriers to comprehension relevant to their workforce, including language barriers and reading comprehension.
• Provide multiple ways for employees to report harassment, with safe and effective procedures.
• Provide training on the company’s anti-harassment policy and reporting procedures for all employees, including management.
• Monitor for compliance with the policy and reporting procedures.

Impact

Although not binding law, the Guidance sets forth the EEOC’s position on what constitutes discriminatory harassment and provides key insight into how the EEOC will enforce federal anti-discrimination laws. Employers should review their policies on discrimination, harassment and reporting to ensure they are in line with the EEOC’s Guidance.

If you would like assistance navigating the EEOC’s recent Guidance and its impact on your company, please reach out and let us know how we can help.