EEOC Releases Proposed Updated Guidance on Workplace Harassment

By Meaghan E. Murphy - Skoler Abbott

October 24, 2023

The United States Equal Employment Opportunity Commission (EEOC) has issued proposed updated guidance called “Enforcement Guidance on Harassment in the Workplace.”  The EEOC enforces federal laws prohibiting employment discrimination on the basis of (1) race and color, (2) national origin, (3) religion, (4) sex, (5) disability, (6) age (40 or older), and (7) genetic information.

As part of the standard procedure, the EEOC published a notice of its proposed guidance in the Federal Register and invited the public to comment on it until November 1, 2023.  After reviewing public input, the EEOC will consider appropriate revisions before finalizing the guidance.  You can find the proposed guidance here.

EEOC’s Announcement of Proposed Updated Guidance

According to the EEOC, the proposed updated guidance reflects notable changes in law, including the Supreme Court’s decision in Bostock v. Clayton County regarding sexual orientation and gender identity discrimination, the #MeToo Movement, and emerging issues, such as virtual or online harassment.  Specifically, the proposed guidance provides numerous updated examples to reflect a wide range of scenarios, incorporates updates throughout on current case law on workplace harassment, and addresses the proliferation of digital technology and how social media postings and other online content can contribute to a hostile work environment.  Here are some highlights:

Broad LGBTQIA+ Protections for Employees

As briefly mentioned above, the EEOC expressly acknowledged in its guidance the Supreme Court’s 2020 decision in Bostock v. Clayton County, in which the Court announced for the first time that Title VII prohibits discrimination on the basis of sexual orientation and gender identity (both of which the Court found fall under the sex discrimination prohibition of Title VII).  This is nothing new for Massachusetts employers.  Both sexual orientation and gender identity were protected categories in Massachusetts (and a number of other states) for a number of years before Bostock was decided.

But the EEOC did list some helpful examples of potential harassment on the basis of gender identity: denial of access to a bathroom consistent with the individual’s gender identity; the intentional and repeated misgendering of an individual; and the harassment of an individual because they do not present in a manner stereotypically associated with their gender.

Protection for Religious Expression by Employees

While employers are required to accommodate employees’ sincerely held religious beliefs pursuant to Title VII, employers also have a duty to protect workers against religiously motivated harassment.  But there is a limitation on that; namely, employers are not required to accommodate religious expression that creates or “reasonably threatens to create” a hostile work environment.  This section of the proposed guidance serves more as a clarification, but it is interesting nonetheless given (1) the significant increase in the number of religious accommodation requests employers received after the onset of the COVID-19 pandemic and the availability of vaccinations to thwart the spread of the virus in the workplace, and (2) the Supreme Court’s recent religious accommodation case in which it announced a heightened duty on employers, which we blogged about here.  At the federal level, religious freedom is gaining some ground in the area of employment law.

Third Party Complaints

Individuals who have not been subjected directly to harassing conduct based on a protected category may file harassment claims if they have been harmed by the unlawful harassment of a third party.  For example, if a supervisor directs an employee to engage in harassing conduct against a co-worker, both the harassed co-worker and the employee directed to engage in the harassment as part of their job duties can file a harassment claim, assuming that latter employee suffered harm as a result.

Harassment Can Occur Virtually

This should come as no surprise to employers; it has been well-established in the law for years.  Given the rise in remote work, the EEOC included a section in its proposed guidance noting that harassment can occur by email, instant message, an employer’s email system, electronic bulletin board, public website, social media, videoconference or other online technology.  Harassment based on a protected category, like sexual or racial harassment, may be unlawful even if it only occurs in a so-called “virtual work environment” or in a non-work-related context.  For example, if private communications that use racial epithets are released and/or discussed by co-workers at a workplace, then the communications can contribute to a racially hostile work environment.

Based on the “proliferation of digital technology,” the EEOC further warned that it is “increasingly likely” for future workplace harassment to be based on nonconsensual distribution of real or computer-generated intimate images using social media.

Some Guidance on Whether Harassment is “Unwelcome”

While an individual alleging harassment must establish that the harassment was “unwelcome,” in the EEOC’s view, conduct that is subjectively and objectively hostile is necessarily unwelcome.  According to the EEOC, establishing unwelcomeness is logically part of demonstrating subjective hostility.  The EEOC considers this requirement effectively a part of the requirement that an individual demonstrate that the conduct was both subjectively and objectively hostile.  To be clear, the Supreme Court has not said that; this is the EEOC’s position on the “unwelcome” requirement.

Temporary Employment Agencies

Temporary employment agencies are responsible for taking reasonable corrective action within their control to address complaints of harassment.  In these situations, corrective action may include ensuring that the client is aware of the alleged harassing conduct; insisting the client investigate the alleged conduct and take appropriate corrective measures; working jointly with the client to conduct an investigation and identify corrective measures; monitoring the worksite to ensure that the corrective measures have been taken; and providing the temporary employee the option of taking another assignment at the same pay rate (if feasible).

The EEOC Wants Employers to Update Their Harassment Policies

The proposed guidance includes resources to assist employers in reviewing and revising their anti-harassment policies, including with respect to their complaint processes.  For example, the EEOC wants employers to consider whether the policy offers “multiple” avenues for reporting harassment, thereby allowing employees to contact someone other than their harassers; whether the policy “clearly identifies accessible points of contact” to whom reports of harassment should be made and includes contact information; and whether the policy explains the employer’s complaint process, including the process’ anti-retaliation and confidentiality protections.  If you have not reviewed your anti-harassment policy in a while, it may be time.

The guidance further recommends employers take other affirmative steps to prevent workplace harassment, including mandatory anti-harassment trainings for all employees and climate surveys of employees to determine whether employees believe that harassment exists in the workplace and is tolerated.

As a reminder, Massachusetts law requires employers to have a written sexual harassment policy, including a detailed complaint process, that it disburses to employees every year, and the Massachusetts Commission Against Discrimination (MCAD) further encourages (but does not require) that that policy cover all unlawful harassment (not just sexual harassment).  And while anti-harassment trainings are not required under Massachusetts law, the MCAD encourages employers to conduct them.

Employer Takeaways

It is important to note that guidance from a federal agency like the EEOC is not governing law.  In other words, it does not have the same power as the actual laws the EEOC enforces (e.g., Title VII).  However, it would still be referenced frequently by EEOC staff, employment law attorneys, and courts.  As a result, any guidance finalized by the EEOC is extremely useful guidance for employers as well.

On another note, the EEOC first released proposed guidance on workplace harassment for public comment in 2017, but it was never finalized.  We will have to wait and see if this time is different.  With that said, the proposed guidance – whether or not it is finalized – reflects the EEOC’s current understanding of, and corresponding enforcement priorities with respect to, workplace harassment.  The EEOC has said that harassment remains a serious workplace problem that it is continuously working to eradicate.  Indeed, between fiscal years 2016 and 2022, more than one-third of charges received by the EEOC included an allegation of harassment.  Thus, even if the proposed guidance is not finalized, it would be unwise to ignore it.  Skoler Abbott will keep you updated on that status of this proposed guidance.

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