It has been nearly 25 years since the Equal Employment Opportunity Commission (EEOC) last amended its guidance on workplace harassment. During that time, digital technology transformed many workplace interactions, the #MeToo movement brought workplace harassment into everyday conversations, and the U.S. Supreme Court expanded Title VII’s protections to include discrimination based on gender identity and sexual orientation. The EEOC is seeking to recognize those and other developments through new proposed guidance, which it published on October 2, 2023. 

The proposed guidance begins by defining legally protected characteristics that are covered by anti-discrimination laws. Most significantly, this section recognizes sex-based harassment based on pregnancy, childbirth, or related medical conditions, including lactation; decisions about contraception and abortion; and sexual orientation or gender identity. Examples of harassment based on gender identity include misgendering, harassment because an individual does not present in a manner consistent with stereotypes of that person’s gender, or denial of access to a bathroom consistent with the individual’s gender identity.

The new guidance also addresses conduct that occurs online. Harassment via work-related communication systems, including company email, instant messaging systems, or official social media accounts, constitutes conduct in the “virtual work environment” that can contribute to a hostile work environment. The EEOC also goes a step further and recognizes that the use of non-work-related communication systems, such as private email or social media accounts, can also contribute to a hostile work environment when it has an impact on the workplace.

The EEOC provides robust guidance on when an employer will be held liable for harassment that creates a hostile work environment. The proposed guidance also identifies the minimum features that should be included in an employer’s anti-harassment policies, complaint process, and training. Although these features help to ensure the effectiveness of these tools, the EEOC emphasizes that no policy, process, or training, by itself, will create an absolute defense against hostile work environment claims. Effective implementation is also critical to demonstrating that an employer took reasonable care to prevent and correct harassing behavior. 

The guidance also outlines what an employer must do once it becomes aware of harassment in the workplace. Corrective action should begin with a prompt and adequate investigation. Based on the results of that investigation, the employer must take corrective actions that are reasonable in light of the proportionality to the offensive conduct, the authority granted the harasser, whether the harassment stops, the effect on the complainant, the options available to the employer, and the extent to which the harassment was substantiated. The employer’s response may require special consideration to any religious accommodation owed to an employee, but the EEOC maintains that employers are not required to accommodate religious expression that creates a hostile work environment.

The proposed guidance contains numerous examples based on actual cases to illustrate when harassment creates a hostile work environment. A hostile work environment can be caused by a single severe incident, such as a sexual assault, the threat of physical violence, or the use of racial epithets by supervisors; or it can be the cumulative effect of many smaller incidents. In either case, the offensive conduct must be both objectively and subjectively hostile. The EEOC takes the position in its proposed guidance that subjectively hostile conduct is necessarily unwelcome, but it acknowledges that some courts continue to treat unwelcomeness as a separate element.

If finalized, the new guidance will supersede Compliance Manual Section 615: Harassment (1987); Policy Guidance on Current Issues of Sexual Harassment (1990); Policy Guidance on Employer Liability under Title VII for Sexual Favoritism (1990); Enforcement Guidance on Harris v. Forklift Sys., Inc. (1994); and Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999). EEOC guidance does not affect legislation or regulations in this area.

The guidance will remain open for public comment until November 1, 2023. Employers are encouraged to review the proposed guidance and update their policies as needed. If you have questions about how the EEOC’s guidance applies to your workplace, please contact Rachel Mattingly Phillips or any other attorney in our Workplace Solutions Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.