On April 29, 2024, the U.S. Equal Employment Opportunity Commission (“EEOC”) published its long-awaited Enforcement Guidance on Harassment in the Workplace (the “guidance”). The guidance is the first update the EEOC has made in this area in 25 years and supersedes the five guidance documents it issued between 1987 and 1999. The publication is the result of a seven-year effort of a bipartisan task force charged with modernizing the EEOC’s workplace harassment enforcement protocols. At its core, the guidance attempts to incorporate notable changes in the legal landscape of employment disputes, including the U.S. Supreme Court’s decisions Bostock v. Clayton County and Zarda v. Altitude Express, as well as the ubiquitous role technology has come to play in the workplace, particularly in remote work settings.
The guidance is intended to provide a resource to employers, employees, and practitioners on the standards applicable to workplace harassment claims under the federal employment discrimination laws within the agency’s purview, such as Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), and the Americans with Disabilities Act (“ADA”). Since the EEOC and other agencies rely on this direction when investigating or litigating harassment claims, the guidance is a significant tool for employers seeking to implement and enforce effective anti-harassment policies. That said, the guidance does not constitute legally binding precedent, but a “legal analysis of standards for harassment and employer liability applicable to claims of harassment under the equal employment opportunity (“EEO”) statutes enforced by the Commission.” The EEOC recognizes that the guidance does not have the force of law, and “do[es] not obviate the need for the EEOC … to consider the facts of each case and applicable legal principles when exercising their enforcement discretion.”
The guidance is broken down into the three main components:
Covered Bases and Causation
The guidance details the EEOC’s position concerning what may constitute workplace harassment under a characteristic protected by the EEO statutes (i.e., race, national origin, religion, etc.). For example, in line with recently enacted New York laws, sex-based harassment under Title VII includes, but is not limited to, harassment based “on pregnancy, childbirth, or related medication conditions,” which “can include issues such as lactation; using or not using contraception; or deciding to have, or not to have, an abortion.” Consistent with the aforementioned Supreme Court decisions, sex-based harassment entails “harassment based on sexual orientation or gender identity, including how that identity is expressed,” such as 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 “deadnaming” (using a name used by a person prior to their transition); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.
For age-based harassment under the ADEA, harassment includes actions “based on stereotypes about older workers, even if they are not motivated by animus, such as pressuring an older employee to transfer to a job that is less technology-focused because of the perception that older workers are not well-suited to such work or encouraging an older employee to retire.” For disability-based harassment under the ADA and in addition to long-recognized areas of harassment, the guidance includes actions “based on the disability of an individual with whom they are associated” and gives the examples of an employee taking leave to care for a family member with “long COVID that meets the ADA’s definition of disability.”
The guidance further outlines other “cross-based” issues of harassment, including perception-based harassment (“based on the perception that an individual has a particular protected characteristic” regardless of whether “the perception is incorrect”); intraclass harassment (“based on the complainant’s protected characteristic” and “the harasser is a member of the same protected class”); associational discrimination (“harassment because the complainant associates with someone in a different protected class”); and intersectional harassment (“based on more than one protected characteristic of an employee, either under a single EEO statute …or under multiple EEO statutes”).
Harassment Resulting in Discrimination with Respect to a Term, Condition, or Privilege of Employment
The guidance addresses the requirement that unlawful harassment affects a “term, condition, or privilege” of employment, and identifies workplace conduct that the EEOC believes satisfies this standard. At the outset, the EEOC states that unlawful harassment covers not only an “explicit change to the terms or conditions of employment” but also the “creation of a hostile work environment,” where the conduct is “both subjectively hostile and objectively hostile.”
Acknowledging the pervasive role of technology, the guidance states that workplace harassment can occur in a “virtual work environment” and provides the following examples of “virtual” harassment: “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 specifically notes that “postings on a social media account generally will not, standing alone, contribute to a hostile work environment if they do not target the employer or its employees.”
Employer Liability
The EEOC outlines several standards of liability that could be imputed against the employer. Which standard applies to any given situation depends on the relationship of the harasser to the employer and the nature of the hostile work environment. For example, if the harasser is a proxy or alter ego of the employer (such as a business owner, corporate officer, or high-level manager), the employer is automatically liable for the hostile work environment created by the harasser’s conduct. If the harasser is a supervisor and the hostile work environment includes a tangible employment action against the victim, the employer is vicariously liable for the conduct. In these scenarios, there is no defense to liability. Where the harasser is any other person, the employer is only liable for the hostile work environment created by the harasser’s conduct if the employer was negligent in that it failed to act reasonably to prevent the harassment or to take reasonable corrective action in response to the harassment when the employer was aware, or should have been aware, of it. Negligence provides a minimum standard for employer liability, regardless of the status of the harasser. Other theories of employer liability – automatic liability (for proxies and alter egos) and vicarious liability (for supervisors) – are additional bases for employer liability that supplement, and do not replace, the negligence standard.
What’s Next?
The guidance has not been without legal challenges. On May 13, 2024, a group of eighteen state attorneys general filed a complaint in the Eastern District of Tennessee against the EEOC challenging the guidance seeking injunctive and declaratory relief. The complaint alleges that the guidance attempts to “extend Title VII’s protections against sex-based discrimination to new contexts related to ‘gender identity’” and that the agency has essentially “amend[ed] Title VII to create a de facto accommodation for gender identity – even though Bostock did not address the accommodations context.” A motion filed by the state attorneys general that seeks a stay and preliminary injunction prohibiting the EEOC from enforcing the guidance has been fully briefed and awaits the Court’s decision.
Notwithstanding the challenge brought by the state attorneys general, employers should be mindful that the guidance still represents the EEOC’s views on actionable instances of harassment and will inform EEOC actions, including with respect to investigative and enforcement decision-making. Employers should refer to the guidance to ensure that their workplace harassment policies and anti-harassment initiatives are current under these updated standards.
Ryan T. Biesenbach is an Associate in Underberg & Kessler LLP’s Litigation and Labor & Employment Practice Groups. He focuses his practice on civil and commercial litigation and labor & employment law, including the development of employment policies, discrimination and harassment claims, wage and hour issues, employee benefits claims, and compliance with state and federal labor laws. Ryan can be reached at rbiesenbach@underbergkessler.com.
Reprinted with permission from The Daily Record and available as a PDF file here.
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