New EEOC Enforcement Guidance on Workplace Harassment

The U.S. Equal Employment Opportunity Commission (EEOC) released final guidance on harassment in the workplace on April 29, 2024. The document titled, “Enforcement Guidance on Harassment in the Workplace” discusses how discriminatory harassment is defined under statutes enforced by the EEOC and the standards used to determine employer liability. 

What Information Is in the Final Guidance?

The document identifies the legally protected characteristics covered by EEO laws enforced by the EEOC. These include 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. Notably, sex-based harassment expressly includes harassment based on sexual orientation and gender identity. It also incorporates harassing conduct involving lactation, contraception, and abortion.

Employers are also reminded that they are obligated to prevent harassment of employees by other employees and by customers, clients, vendors, and the like.

The guidance then explains how to determine whether harassing conduct is unlawful. Such conduct must be based on a legally protected characteristic and constitute or result in discrimination with respect to a term, condition, or privilege of employment or must rise to the level of a hostile work environment in order to hold the employer liable.

What Types of Conduct May Constitute Unlawful Harassment?

Numerous examples of illegal harassment are provided to aid employees and employers. These include:

• Saying or writing an ethnic, racial, religious, or sex-based slur;
• Forwarding an offensive or derogatory “joke” email;
• Displaying symbols such as a noose, religious or ethnic hate symbols, or racist cartoons; 
• Sharing pornography or sexually demeaning images in the work environment; 
• Imitating a person’s disability-based limitations;
• Mocking a person’s accent; 
• Threatening or intimidating a person because of their religious beliefs, their religious attire, or their lack of religious beliefs; 
• Groping, touching, or otherwise physically assaulting a person;
• Making sexualized gestures or comments, even when this behavior is not motivated by a desire to have sex with the victim; and
• Threatening a person’s job or offering preferential treatment in exchange for sexual favors.

How Are Hostile Work Environment Claims Determined?

The guidance reiterates the standard for employer liability for a “hostile work environment.” A hostile work environment exists when harassment is so severe or frequent that a reasonable person in the employee’s position would find the situation to be both subjectively and objectively hostile. The standard of liability varies depending on the position of the harasser (the employer, a proxy for the employer, a supervisor, a co-worker, or other party), whether the hostile work environment included a tangible employment action against the employee, and whether the employer was negligent in failing to act.

Why Did the EEOC Release New Enforcement Guidance?

The new guidance consolidates and replaces five prior guidance documents issued between 1987 and 1999. In updating the guidance, the EEOC noted the high percentage of discrimination claims involving allegations of harassment since 2016. Further, the new document reflects changes in the law including the U.S. Supreme Court decision in Bostock v. Clayton County that held that Title VII of the 1964 Civil Rights Act encompasses both sexual orientation and gender identity. 

The final version also incorporates concerns raised during the public comment period, which ran from October 2, 2023 to November 1, 2023. 

What Other Resources Are Available from the EEOC?

The EEOC has provided additional resources along with the final guidance, including:

• Summary of Key Provisions
• Questions and Answers for Employees: Harassment at Work
• Small Business Fact Sheet: Harassment in the Workplace

In addition, employers can refer to older documents referenced in the final guidance, such as the following:

• 2023 Promising Practices for Preventing Harassment in the Federal Sector
• 2017 Promising Practices for Preventing Harassment 
• 2016 report of the Co-Chairs of the Select Task Force on Harassment in the Workplace.

These documents offer technical assistance and recommendations for preventing harassment.

What Actions Should Employers Take Now?

Employers must review and revise their employment policies, handbooks, complaint and investigation procedures, and training programs to ensure compliance with the final guidance.

Please feel free to contact any of our attorneys if you have questions about the final guidance or need assistance evaluating what changes you may need to make to comply with the law.

NOTICE: Material provided on this website has been prepared by Kauff McGuire & Margolis LLP solely for general informational purposes, and it is not intended to and does not constitute legal advice. Material provided on the website is not privileged and does not create an attorney-client relationship with the Firm or any of its lawyers.