EEOC releases proposed enforcement guidance on workplace harassment

At a glance

On 2 October 2023, the Equal Employment Opportunity Commission (EEOC) released proposed enforcement guidance (Proposed Guidance) on workplace harassment.

The Proposed Guidance outlines the EEOC’s views on the scope of Title VII protections.

While much of the Proposed Guidance covers fairly standard ground, the EEOC also addresses new areas.

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On 2 October 2023, the EEOC released Proposed Guidance on workplace harassment. If finalised, the new guidance will supersede earlier agency policy and enforcement guidance and address areas such as gender identity, virtual work environments, employee social media activity, and systemic discrimination.

The Proposed Guidance also outlines the EEOC’s views on effective policies, procedures, and training to prevent workplace harassment.

The EEOC is expected to issue final guidance sometime after the public comment period, which closed on 1 November 2023. While the guidance will not have the force and effect of law, it provides a roadmap for how the EEOC will investigate harassment complaints and enforce Title VII. Accordingly, employers are encouraged to review their policies, procedures and training based on the Proposed Guidance and any final guidance.

Title VII Protections and Employer Obligations

The introduction to the Proposed Guidance highlights the impact of the ‘#MeToo’ movement and the persistence of harassment as a serious workplace problem. Between the beginning of fiscal year (FY) 2018 and the end of FY 2022, 35% of EEOC employment discrimination charges included an allegation of harassment based on a protected characteristic.

The Proposed Guidance outlines the EEOC’s views on the scope of Title VII protections, citing to numerous court decisions issued since the EEOC last published enforcement guidance in 1999. The Proposed Guidance is organised into three sections that track the components of a harassment claim:

• protected classes under Title VII and causation;
• harassment resulting in discrimination with respect to a term, condition, or privilege of employment; and
• employer liability.

While much of the Proposed Guidance covers fairly standard ground, the EEOC also addresses new areas. Key provisions are discussed below.

Protection for non-cisgender and LGBTQ+ persons

Citing to the US Supreme Court’s decision in Bostock v. Clayton (holding that Title VII’s prohibition on discrimination ‘because of sex’ includes discrimination on the basis of sexual orientation and gender identity), the Proposed Guidance explicitly provides protection against sex-based harassment, which includes harassment based on ‘sexual orientation and gender identity.’ According to the EEOC, examples include harassment based on a person’s divergence from societal gender stereotypes, intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (misgendering), and denial of access to a sex-segregated bathroom or facility consistent with the individual’s gender.

Pregnancy, childbirth, or related medical conditions

According to the Proposed Guidance, sex-based harassment includes harassment based on pregnancy, childbirth, or related medical conditions, including lactation. It can also include harassment based on a woman’s reproductive decisions, such as decisions about contraception or abortion.

Digital and virtual technology

The EEOC’s Proposed Guidance expands the definition of work environment to include the virtual workspace (eg email, instant messaging, video calls). Conduct that occurs in such virtual workspaces will be examined as conduct under the ambit of Title VII.

The Proposed Guidance also addresses out-of-work conduct that can contribute to a hostile work environment, such as harassing behaviour on personal social media accounts and electronic devices. For example, according to the EEOC, if an employee posts ethnic epithets about a co-worker on a personal social media page and the co-worker learns about the post directly or other co-workers see the comment and discuss it at work, the post can contribute to a racially hostile work environment. Similarly, the non-consensual distribution of real or AI-generated intimate images using social media can contribute to a hostile work environment if it impacts the workplace.

Employer liability

The Proposed Guidance also discusses how the EEOC will assess whether the employer has taken adequate steps to prevent and correct harassment and details the minimum features necessary for an anti-harassment policy, complaint process, and training to be effective.

Systemic harassment

The EEOC’s Proposed Guidance concludes with a section on systemic harassment, which can include harassment affecting multiple complainants and pattern-or-practice claims. This aligns with the EEOC’s recent emphasis on addressing systemic discrimination in all forms and on all bases. In FY 2023, the EEOC filed 25 systemic lawsuits, almost double the number filed in each of the past three fiscal years.

According to the EEOC, to avoid liability in pattern-or-practice claims, employers must ‘adopt a systemic remedy’ rather than only addressing harassment of certain individuals. In addition, if there have been frequent individual incidents of harassment, the Proposed Guidance states that the employer is obligated to take steps to determine whether a wider problem exists that would require a systemic response.