The U.S. Equal Employment Opportunity Commission (EEOC) recently invited the public to comment on its proposed “Enforcement Guidance on Harassment in the Workplace” (“Guidance”).
The guidance was much anticipated as the EEOC first released proposed guidance on workplace harassment in 2017. However, it was not finalized. The updated guidance reflects notable developments in the law, including the Supreme Court’s decision in Bostock v. Clayton County, the #MeToo movement, and emerging issues, such as online harassment, including electronic communications.
The guidance explains the legal standards applicable to harassment claims under federal employment discrimination laws. These laws protect covered employees from harassment based on:
- Sex (including sexual orientation, transgender status, and pregnancy);
- National origin;
- Age (40 and older); or
- Genetic information
The guidance includes illustrative examples of instances where a covered employee may have a claim for harassment.
3 Key Updates
#1 Expanded Protection Under Federal Law
The EEOC expanded sex-based harassment to include harassment based on an employee’s sexual orientation or gender identity.
The guidance provides the following example of harassment in the workplace based on sex:
Aiko, a construction worker on a road crew, alleges that she was subject to unlawful sex-based harassment by her supervisor. Aiko alleges the supervisor used sex-based epithets and disparaged women’s participation in the construction industry. Based on these facts, Aiko alleged harassment based on sex.
The guidance provides the following example of workplace harassment specifically based on gender identity:
Jennifer is a cashier at a fast-food restaurant who identifies as female. Jennifer alleges that supervisors, coworkers, and customers regularly and intentionally misgender her.
One supervisor, Allison, frequently uses Jennifer’s prior male name, male pronouns, and ‘dude’ when referring to Jennifer. This is despite Jennifer’s request for Allison to use her correct name and pronouns. Meanwhile, other managers also intentionally refer to Jennifer as ‘he.’
Coworkers have asked Jennifer questions about her sexual orientation and anatomy and asserted that she was not female. Customers also have intentionally misgendered Jennifer and made threatening statements to her. Yet, Jennifer’s supervisors did not address the harassment, instead reassigning her to duties outside of the view of customers.
Based on these facts, Jennifer has alleged harassment based on her gender identity.
#2 Conduct Outside the Workplace May Create a Hostile Work Environment
The guidance provides that a hostile work environment claim may include conduct in a work-related context outside of the employee’s regular workplace. This may include harassment directed at an employee during a required training even if it was not at the employer’s facility.
The guidance provides the following example:
“Fatima’s employer hosts its annual holiday party in a private restaurant. One of her coworkers, Tony, drinks to excess, and at the end of the evening attempts to grope and kiss Fatima. Although Tony’s behavior occurred outside Fatima’s regular workplace and at a private restaurant unaffiliated with her employer, it occurred in a work-related context. Therefore, based on these facts, the harassment occurred in Fatima’s work environment for purposes of a Title VII sexual harassment claim.”
Misconduct also occurs within the workplace if it is conveyed using work-related communications systems. According to the proposed guidance, “this can include, for instance, sexist comments made during a video meeting, 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.”
#3 Systemic Workplace Harassment
A significant focus of the guidance addresses systemic harassment. Systemic harassment occurs when multiple individuals are subjected to a similar form of discrimination.
The guidance provides the following example of systemic harassment:
“Charging Parties (CPs), five Black correctional officers, allege that they were subjected to racial harassment.
CPs, who were the only Black officers on their shift, alleged that they experienced demoralizing racial treatment and jokes, including aggressive treatment by dog handlers stationed at the entrance and racial references and epithets, such as the n-word, “back of the bus,” and “the hood.” Much of the conduct occurred in a communal setting, such as the cafeteria, in which supervisors participated or laughed at the conduct without objecting.
The evidence shows that this conduct occurred regularly, up to several times a week during the approximately one-year period before CPs filed EEOC charges, despite CPs’ repeated objections. Although none of the CPs were personally subjected to every harassing incident, the harassers treated them as a cohesive group, and each became aware of harassment experienced by the others.
Based on these facts, the investigator concludes that each of the CPs was subjected to an objectively hostile work environment based on race.”
In some situations involving systemic harassment, the evidence may establish that the employer engaged in a “pattern or practice” of discrimination. This means that the employer’s “standard operating procedure” was to tolerate harassment creating a hostile work environment. This inquiry focuses on the “landscape of the total work environment, rather than the subjective experiences of each individual claimant”. In other words, the focus is on whether the work environment, as a whole, was hostile.
Enforcement Guidance on Harassment: Next Steps
The proposed guidance is open for public comment until November 1, 2023. The EEOC will then review the public’s input and consider appropriate revisions before issuing the final guidance. Once final, the guidance will not be legally binding but will exist to provide clarity on EEOC positions.
EEOC Harassment Resources
Additional EEOC harassment resources include:
- EEOC Harassment Home Page
- EEOC Sexual Harassment Home Page
- EEOC Select Task Force on the Study of Harassment in the Workplace
- Promising Practices for Preventing Harassment
- Promising Practices for Preventing Harassment in the Federal Sector
- EEOC Retaliation Home Page
- Enforcement Guidance on Retaliation and Related Issues
Please let me know if you have questions or if you would like to learn more regarding enforcement guidance on harassment. As always, please let me know if I can help.