Proposed EEOC Enforcement Guidance Reflects Societal Changes

The U.S. Equal Employment Opportunity Commission issued new proposed enforcement guidance on harassment in the workplace Oct. 2. 

If finalized, it will be the first time the agency has updated its guidance in this area in several decades.  

EEOC officials noted significant changes in the law, as well as emerging issues, such as the #MeToo movement and online harassment, warranted updated guidance. 

The proposed guidance is lengthy, as it is intended to supersede five earlier publications from the 1980s and 1990s that had explained various legal concepts related to workplace harassment. 

The newly-proposed guidance includes a detailed explanation of workplace harassment law, liability issues, potential defenses, and many real-world examples of conduct that is, and is not, harassment. 

For this reason, the proposed guidance can be a helpful resource for employers and employees alike, as well as employment attorneys. 

Workplace Harassment 

The guidance does not focus solely on sexual harassment, but instead emphasizes that workplace harassment may be based on race, color, national origin, religion, sex, age, disability, or genetic information. 

Preventing and addressing harassment is a national enforcement priority for the EEOC. 

According to the agency, 35% of complaints included harassment allegations in the last five years.

The guidance emphasizes that workplace harassment may be based on race, color, national origin, religion, sex, age, disability, or genetic information. 

Officials note, however, that anti-discrimination laws only prohibit workplace harassment when the harassment is based on an employee’s protected characteristic. 

In other words, a supervisor will not violate EEO laws when they “harass” an employee for personal reasons, or because they simply doesn’t like that employee. 

The supervisor only violates the law when they harasses the worker “because of” the worker’s protected characteristic, like their race or religion.   

Application

The guidance includes several examples of potential workplace harassment, many of which are based on recent developments in the law and relevant societal changes. For example:

• A customer who continually misgenders a transgender company employee, thereby exposing the company to a harassment claim when it fails to address the customer’s conduct
• A colleague making sexually suggestive comments when they see a bed in the background of a co-worker’s Zoom call
• A racist social media post about a coworker
• Comments about a Black colleague’s hair style, or an Indian colleague’s accent
• Stereotyping conduct, like assuming a young woman with children can only work part-time or in a non-leadership position; or questioning why a male employee is exhibiting traditionally feminine characteristics
• Commenting on an employee’s reproductive decisions relating to contraception or abortion

Though enforcement guidances like this one are not legally binding even when finalized, they do reflect EEOC policy and are often relied upon by judges in their decisions. 

Employers can submit comments to the proposed guidance by Nov. 1, 2023.

---

HR problems or issues? Email or call CBIA’s Diane Mokriski at the HR Hotline (860.244.1900) | @HRHotline. The HR Hotline is a free service for CBIA member companies.