The EEOC’s proposed guidance:

• If passed, represents the first update to harassment enforcement in nearly 25 years.

• Attempts to modernize previously issued guidance by addressing emerging workplace issues and renewing focus on key topics with contemporary examples.

• References a vast range of case law across many jurisdictions in order to provide clarity on previously established standards and track the evolution of new developments in the law.

Background and Process

On October 1, 2023, the Equal Employment Opportunity Commission published draft guidance regarding workplace harassment. The guidance attempts to bring the Commission’s previous guidance into the 21st century by referencing new standards regarding the evolution of recognized protected classes, new examples of the application of discrimination laws to various unique workplace scenarios, and examples of new case law reflecting emerging issues surrounding social justice and technology.

The public will have 30 days (until November 1, 2023) to review the proposed guidance and submit comments via the federal e-regulation website. While this guidance is sub-regulatory – meaning it cannot alter existing regulation or enacted legislation – if issued, it would supersede the compliance manuals, policy guidance, and enforcement guidance the Commission previously issued in the 1990s.

Sex-Based Discrimination Regarding Sexual Orientation and Gender Identity

The draft guidance includes clarity as to the enforcement of sex-based discrimination regarding sexual orientation and gender identity, as envisioned by the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, 140 S. Ct. 1732, 1747. While Bostock itself concerned allegations of discriminatory discharge, courts have applied the Supreme Court’s reasoning to claims of sex-based harassment brought under Title VII. Examples include epithets regarding sexual orientation or gender identity; physical assault; harassment because an individual does not present in a manner that would stereotypically be associated with that person’s gender; intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.

Enhanced Focus Surrounding Sexual Harassment

The Commission’s proposed guidance recognizes that the “#MeToo” movement brought renewed public focus on sexual harassment at work. Specifically, the guidance cites a 2021 Associated Press poll which reflected that, while only 35% say sexual misconduct is a very serious problem in the workplace (down from 56% in 2017), 54% say the recent attention to the issue has made them more likely to speak out if they were a victim of sexual misconduct, as well as 58% saying they are more willing to speak out if they were to witness it happening. The guidance also refers to a June 2016 report from the Commission’s Select Task Force on the Study of Harassment in the Workplace, which acknowledged that the severity of harassment may be enhanced if a complainant has reason to believe that the harasser is insulated from corrective action – i.e., where the alleged harasser was a highly valued employee, or the employer has previously failed to take appropriate corrective action in similar circumstances.

Emerging Issues Regarding Online Harassment

The Commission attempts to tackle emerging issues in its proposed guidance, including by addressing conduct that does not occur in a work-related context, but may affect the terms and conditions of employment, such as virtual or online harassment. The Commission has recognized that, given the proliferation of digital technology, it is increasingly likely that electronic communications using private phones, computers, or social media accounts can contribute to a hostile work environment. However, the Commission reminds that such out-of-work conduct is only actionable if it impacts the workplace.

Updates on Protected Characteristic Standard

The proposed guidance provides modern updates to the analysis as to whether harassment is based on an employee’s legally protected characteristics. First and foremost, the EEO statutes do not prohibit harassment that is not based on a protected characteristic. The determination of whether hostile workplace harassment is based on a protected characteristic will depend on the totality of the circumstances, which may include facially discriminatory conduct, stereotyping, context, timing, comparative evidence, and/or a link between harassment that is not explicitly connected to a protected basis and facially discriminatory conduct. The proposed guidance provides a dozen detailed and contemporary examples adapted from real EEO cases which address each of these factors in the causation analysis.

Clarity on the Severe-or-Pervasive Standard

The Commission also included explicit, unambiguous, and concise reminders that Title VII does not impose a general civility code that covers “run-of-the-mill boorish, juvenile, or annoying behavior.” Morris v. City of Colo. Springs, 666 F.3d 654, 664 (10th Cir. 2012) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). Instead, the Commission clarifies that the severe-or-pervasive standard takes a “middle path” that requires the conduct to be more than merely offensive but does not require that the conduct caused psychological harm. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993). To that end, employers should note that employees must “accommodate the normal run of aggravations that are part of holding a job. Ziskie v. Mineta, 547 F.3d 220, 228 (4th Cir. 2008).

Single Incident Sufficient to Establish Hostile Work Environment

The draft guidance also provides examples of conduct that courts have found sufficiently severe to establish a hostile work environment based on a single incident, including, but not limited to, sexual assault, sexual touching of an intimate body part, physical violence or the threat of physical violence, the use of symbols of violence, hatred, or animal imagery toward individuals sharing the same protected characteristic, a threat to deny job benefits for rejecting sexual advances, and the use of the “n-word” by a supervisor in the presence of a Black subordinate.

Enforcement Employer Policies and Trainings

The Commission’s proposed guidance requires employers to provide effective anti-harassment policies, complaint processes, and trainings, including those designed to help supervisors recognize, report, and investigate alleged occurrences of harassment. In order to be effective and thus support the Faragher-Ellerth affirmative defense to vicarious liability, the employer’s policies, complaint processes, and trainings must adhere to a number of minimum standards established by various courts, which demonstrate that the employer acted reasonably to prevent and promptly correct harassment and the complainant unreasonably failed to use the employer’s complaint procedure.

Regardless, the proposed guidance makes clear that even the best anti-harassment policy, complaint procedure, and training is not dispositive on the issue of whether an employer exercised reasonable care to effectively prevent harassment or correct harassing behavior of which it knew or should have known. To be clear, if the employer fails to exercise reasonable care to correct the harassing behavior, it will be unable to satisfy prong one of the Faragher-Ellerth defense, regardless of any policy, complaint procedure, or training.

Employers should note that some state and local laws have lessened or eliminated the use of the Faragher-Ellerth defense.

What Employers Can Do Now

Employers are advised to track the commentary and approval process for the EEOC’s Proposed Guidance, as well as review and refer back to the Proposed Guidance once it is finalized. The Commission’s position on the wide range of issues discussed in the Proposed Guidance is useful in anticipating various harassment disputes before they arise, crafting effective anti-harassment policies, and analyzing pending matters under investigation.

For more information or immediate guidance, please contact:

• Zachary T. Ruetz
• Scott R. Green
• Caroline J. Berdzik
• Or another member of our Employment and Labor team.