Almost seven months after seeking public comment on an initial proposed version, and more than seven years after first attempting to update its guidance on the issue, the Equal Employment Opportunity Commission issued on Monday, April 29, 2024, its final Enforcement Guidance on Harassment in the Workplace, incorporating major legal and social developments that have dramatically altered the landscape for employers and employees nationwide in recent years.[1] Specifically, the final Enforcement Guidance addresses, among other issues, harassment based on sexual orientation and gender identity, intersectional harassment based on multiple protected characteristics, intraclass harassment based on one or more protected characteristics shared by the perpetrator and the victim, remote work and online harassment, and third-party harassment by individuals other than an employee’s supervisors or coworkers.
Background of new regulations
Workplace harassment has been a priority policy issue for the commission for the better part of the last decade, with over half of all federal equal employment opportunity complaints filed since fiscal year 2018 involving allegations of unlawful harassment, according to the commission. In January 2015, the commission announced the creation of a 16-member Select Task Force on Harassment in the Workplace whose objective was to study workplace harassment “in all of its forms” and recommend best practices for prevention.[2] Following presentation of the Report of the Co-Chairs of the Select Task Force in June 2016, the commission released its first proposed Enforcement Guidance on Unlawful Harassment in January 2017 and invited public comment.[3] However, the Trump administration began prior to the conclusion of the period for public comment, and the 2017 proposed guidance did not proceed further.
Since then, the #MeToo movement’s campaign against sexual harassment and sexual violence, as well as the explosive rise in remote work following the COVID-19 pandemic, have significantly impacted workplaces nationwide. Moreover, the prior proposed guidance was issued prior to the United States Supreme Court’s opinion in Bostock v. Clayton Cnty., Georgia, 590 U.S. 644, 683, 140 S. Ct. 1731, 1754, 207 L. Ed. 2d 218 (2020), which confirmed that Title VII’s protections against harassment extend to harassment based on sexual orientation and gender identity.[4]
Current EEOC Chair Charlotte A. Burrows, who as a commissioner voted to approve the prior 2017 guidance, says the final Enforcement Guidance issued this week addresses “both in-person and online [harassment] [,]” “brings together best practices [,]” and “clarifies recent developments in the law.”[5] The final Enforcement Guidance was approved by a majority of the five-person commission, with voting following along party lines, approximately twenty-five years after the commission last issued guidance on the issue in June 1999. The final Enforcement Guidance supersedes all prior guidance documents issued by the commission between 1987 and 1999.[6]
Examples illustrate EEOC’s current view of workplace harassment
The final Enforcement Guidance was issued by the commission after receiving approximately 38,000 public comments in the fall of 2023 and includes more than 70 examples of scenarios the commission considers illustrative of unlawful harassment.[7] These examples include such scenarios as a manager making repeated comments regarding an employee’s natural hair; consensual workplace relationships resulting in less favorable treatment to other workers; the repeated and intentional misgendering of a transgender employee by management, coworkers, and customers; repeated, unwelcome religious proselytizing by a coworker; and sexual advances made by a coworker during an employer-sponsored holiday party held offsite. The final Enforcement Guidance also sets out the commission’s position that “the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity[,]” “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” may constitute unlawful harassment.
At the same time, the final Enforcement Guidance also includes examples of workplace conduct the commission acknowledges would not rise to the level of unlawful harassment, such as hostile and rude conduct by a coworker not linked by evidence to any protected characteristic; a single offensive remark about menstruation made to a female coworker during a heated disagreement; religious expression in the workplace that is not targeted at another individual despite objections; and postings on personal social media accounts that do not target the employer or its employees or have an impact on an employee’s work environment.
Bottom line for employers
As the agency tasked with enforcing federal antidiscrimination laws, the EEOC’s position with regard to unlawful harassment and the many legal issues associated with harassment claims and defenses, as set forth in the final Enforcement Guidance, is an important resource for employers to consider when evaluating current compliance programs and efforts to prevent and address unlawful harassment in the workplace. And the new rules certainly should be helpful in predicting what the EEOC may conclude regarding whether harassing conduct alleged in an EEOC charge rises to a violation of the law.
However, as the EEOC itself has stated, the final Enforcement Guidance “do[es] not have the force and effect of law, [is] not meant to bind the public in any way, and do[es] not obviate the need for the EEOC and its staff to consider the facts of each case and applicable legal principles when exercising their enforcement discretion.”[8] In other words, the EEOC is not binding itself to its own guidance and could end up expanding or contracting its definitions of unlawful harassment with respect to a particular matter. In addition, federal district courts are not bound by the new EEOC regulations and may have a different view of whether alleged harassing conduct violates the law.
Bottom line, employers should not view the final Enforcement Guidance as a universally applicable, paint-by-number guide to compliance. However, to mitigate risk, employers generally will want to maintain anti-harassment policies that go beyond what the law requires. In addition, an anti-harassment policy which mirrors the EEOC’s most recent guidance on the topic will likely be viewed favorably by both the EEOC and the courts when assessing an employer’s culpability for alleged workplace harassment. Accordingly, employers may wish to revise their current policies with the new EEOC rules in mind, even including some of the examples offered by the EEOC as a guide to employees. With regard to drafting compliant policies and assessing and defending claims of harassment, employers should consult with an experienced employment attorney for advice regarding their particular circumstances. Butler Snow’s Labor & Employment group members are ready to assist if needed.
[1] Enforcement Guidance on Harassment in the Workplace, No. 915.064 (Apr. 29, 2024), available at https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace.
[2] Press Release, Equal Employment Opportunity Commission, EEOC to Study Workplace Harassment: Select Task Force of Academics, Practitioners and Stakeholders To Study How To Address And Prevent All Types of Workplace Harassment (Mar. 30, 2015), https://www.eeoc.gov/newsroom/eeoc-study-workplace-harassment.
[3] Press Release, Equal Employment Opportunity Commission, EEOC Seeks Public Input on Proposed Enforcement Guidance on Harassment (Jan. 10, 2017), https://www.eeoc.gov/newsroom/eeoc-seeks-public-input-proposed-enforcement-guidance-harassment.
[4] “We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.” Id.
[5] Press Release, Equal Employment Opportunity Commission, EEOC Releases Workplace Guidance to Prevent Harassment: Builds on Previous Work, Addresses Legal Developments and Emerging Issues, Including Virtual Work Environments (Apr. 29, 2024), https://www.eeoc.gov/newsroom/eeoc-releases-workplace-guidance-prevent-harassment.
[6] Enforcement Guidance on Harassment in the Workplace, No. 915.064 (Apr. 29, 2024), available at https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace.
[7] Press Release, Equal Employment Opportunity Commission, EEOC Releases Workplace Guidance to Prevent Harassment: Builds on Previous Work, Addresses Legal Developments and Emerging Issues, Including Virtual Work Environments (Apr. 29, 2024), https://www.eeoc.gov/newsroom/eeoc-releases-workplace-guidance-prevent-harassment.
[8] Enforcement Guidance on Harassment in the Workplace, No. 915.064 (Apr. 29, 2024), available at https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace.
