EEOC Releases Final Workplace Harassment Guidance

The U.S. Equal Employment Opportunity Commission published its final guidance on workplace harassment April 29.

The changes represent the first update in 25 years and focus on protecting covered employees from harassment based on race, color, religion, sex (including pregnancy, childbirth or related medical conditions; sexual orientation; and gender identity), national origin, disability, age (40 or older), or genetic information.

All five of the agency’s previous guidance documents issued between 1987 and 1999 are superseded by the new guidelines, which were first proposed last year.

“Harassment, both in-person and online, remains a serious issue in America’s workplaces,” EEOC chair Charlotte Burrows said.

“The EEOC’s updated guidance on harassment is a comprehensive resource that brings together best practices for preventing and remedying harassment and clarifies recent developments in the law.”

LGBTQ+ Issues

The overhauled guidelines also reflect recent legal developments, including a 2020 U.S. Supreme Court decision that Title VII of the 1964 Civil Rights Act protects gay and transgender employees.

Under the new guidelines, employers that repeatedly and intentionally misgender an employee by using the “name or pronoun inconsistent with the individual’s known gender identity” or by denying access “to a bathroom or other sex-segregated facility consistent with the individual’s gender identity” is committing unlawful workplace harassment.

Agency officials said such practices are considered sex-based discrimination under Title VII, which “includes harassment based on sexual orientation or gender identity, including how that identity is expressed.”

The guidelines include over 70 hypothetical scenarios highlighting workplace harassment situations.

The EEOC guidelines include over 70 hypothetical scenarios highlighting workplace harassment situations, such as a supervisor repeatedly questioning a transgender employee about her gender identity and referring to her as“he/him.”

The guidance also addresses employees’ reproductive health-related decisions, with the agency determining that employee decisions on issues such as contraception and abortion are covered by Title VII.

It also demonstrates that employees may be subjected to unlawful harassment not only by coworkers or supervisors, but also by customers, contractors, and other third parties.

“The guidance will help raise awareness about the serious problem of harassment in employment and the law’s protections for those who experience it,” Burrows said.

Remote Work

Approved on a 3-2 vote by EEOC commissioners, the guidelines also address the growth of virtual work environments and the impact of digital technology and social media as workplace harassment factors.

“As with a physical work environment, conduct within a virtual work environment can contribute to a hostile work environment,” the guidelines note.

“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 guidelines also address the growth of virtual work environments and the impact of digital technology and social media.

The guidance emphasizes that conduct occurring on an employer’s email system, videoconferencing, or social media accounts can contribute to a “hostile work environment.”

For instance, if an employee sent jokes to colleagues involving racial stereotypes from their work computer and email, that is considered as taking place within the work environment.

The EEOC also notes that while employers generally are not responsible for conduct that occurs in a non-work-related context, “they may be liable when the conduct has consequences in the workplace and therefore contributes to a hostile work environment.”

“For instance, if a Black employee is subjected to racist slurs and physically assaulted by White coworkers who encounter him on a city street, the presence of those same coworkers in the Black employee’s workplace can result in a hostile work environment,” the guidance reads.

Resources

The guidance takes immediate effect and is the EEOC’s second attempt to establish new anti-harassment guidelines after a 2017 proposal stalled.

EEOC officials said the agency plans to enhance administrative procedures and its website to help employers with potential defenses, including religious defenses in charge investigations at the agency.

While the guidelines are not legally binding, they generally serve as the standard for how the EEOC interprets and enforces discrimination and anti-bias laws.

The EEOC issued several educational resources, including a Summary of Key Provisions, document for employees, and a fact sheet for small businesses.

The agency also offers the following workplace harassment resources:

• Promising Practices for Preventing Harassment in the Federal Sector
• Promising Practices for Preventing Harassment
• Report of the Co-Chairs of the Select Task Force on Harassment in the Workplace