Importantly, the guidance serves as a reminder that employers need to look beyond sexual harassment when assessing their harassment prevention programs. 

On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) issued its updated Enforcement Guidance on Harassment in the Workplace. The guidance, which is effective immediately, supersedes a series of five guidance documents issued by the EEOC in the 1980s and 1990s, and follows on the proposed guidance released by the EEOC for public comment in October 2023. Although the EEOC notes that the guidance does “not have the force and effect of law,” the statement accompanying the release describes the guidance “as a comprehensive resource that brings together best practices for preventing and remedying harassment and clarifies recent developments in the law.”

The guidance provides significant insight into the EEOC’s current view of what constitutes “harassment based on race, color, religion, sex, national origin, age, disability [and] genetic information” and the standards to be applied in determining employer liability―a view that is informed not only by intervening changes in the law, but also by technological changes impacting workplaces, including electronic communications, remote work and even AI (in the form of potential “deep fake” intimate images). The guidance is extensive―running at almost 150 pages with 387 footnotes―and includes more than 75 detailed examples of potentially harassing conduct, which remains a key concern for the EEOC (which notes that approximately 35 percent of the merits lawsuits it brought in fiscal year 2023 included a harassment allegation).

Importantly, as we noted in our previous Alert on the proposed guidance in October 2023, the guidance serves as a reminder that employers need to look beyond sexual harassment when assessing their harassment prevention programs. For instance, although there is no federal Create a Respectful and Open World for Natural Hair (CROWN) Act (and only a minority of states have such an act), one of the examples provided examines comments about the appearance of Black hair that the EEOC considers race-based harassment. Other examples consider harassment based on:

• Color, even independent of any reference to race or national origin;
• Religion, including proselytizing, anti-Semitic comments and comments aimed at a religious accommodation;
• Sex, including sex-based harassment aimed at men, with one example dealing with co-worker harassment of an individual based on his vasectomy;
• Pregnancy and pregnancy-related medical conditions, including lactation; and
• Disability, including harassment based on the fact of a disability accommodation, as well as associational discrimination based on an employee’s relationship with a family member with long COVID.

Two examples consider harassment based on gender identity and, specifically, treatment of transgender employees, including such conduct as a manager’s attempts to dictate what they consider gender-appropriate attire for a transgender employee, questions about a transgender employee’s anatomy and “misgendering” of an employee (defined as “repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity”).

The guidance further takes the position that “outing” an individual―that is, revealing either their sexual orientation or gender identity without permission―would constitute sex-based harassment, as would denying an individual access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity. The EEOC is silent on the potential privacy issues employees may raise in connection with bathroom use and gives no hint as to what other “sex-segregated” facilities it is referring. We anticipate litigation with regard to this issue.

Although not the subject of a detailed example, the guidance also expressly notes that harassment aimed at an individual for the decision to have (or not to have) an abortion constitutes sex-based harassment―an approach consistent not only with the October 2023 proposed guidance but with the inclusion of abortion within the definition of “pregnancy, childbirth, or related medical condition” in the final rule and interpretive guidance implementing the Pregnant Workers Fairness Act, which the EEOC issued earlier in April.

The EEOC makes clear that conduct within a virtual work environment also may contribute to a hostile work environment. The guidance provides the following examples of harassing conduct in the virtual workplace:

• 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; and
• Sexual comments during a video meeting about a bed being near an employee in the video image.

The guidance flags that harassment based on “perception”―even if incorrect―may be actionable, providing the example of a Hispanic person harassed because they are believed to be Pakistani as national origin harassment and a Sikh being harassed because they are believed to be Muslim as religious harassment.

In addition, the guidance emphasizes that “intraclass” harassment is actionable―providing such examples as:

• A 52-year-old supervisor repeatedly commenting on the age of a 65-year-old employee;
• An employee of Chinese ancestry berating a co-worker of Chinese ancestry for failing to live up to her expectations of a Chinese worker; or
• A female employee repeatedly commenting to her female co-workers with and without children, respectively, that mothers should not work outside the home and expressing negative views of women who do not want children.

The guidance also tackles the subject of “retaliatory harassment,” which it notes can be challenged even if it is not sufficiently severe or pervasive to alter the terms and conditions of employment by creating a hostile work environment.

And, critically, the guidance provides a “non-exhaustive list” of conduct that has been found sufficiently severe to establish a hostile work environment based on a single incident. Those are:

• Sexual assault;
• Sexual touching of an intimate body part;
• Physical violence or the threat of physical violence;
• The display of symbols of violence or hatred, such as a swastika, an image of a Klansman’s hood or a noose;
• The use of denigrating animal imagery, such as comparing the employee to a monkey, ape or other animal;
• 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.

This aspect of the guidance is obviously relevant in determining appropriate corrective action.

The guidance also includes “best practices” with regard to anti-harassment policies, complaint procedures, training, investigations, corrective action and other aspects of a holistic approach to preventing and remedying harassing conduct.

Despite its length and detail, however, the guidance falls short in two key aspects. First, although commenters urged the EEOC to “clarify the interplay between… employers’ obligations to address workplace harassment under federal employment discrimination laws and to comply with the National Labor Relations Act,” it declined to do so, stating simply that “[a] discussion of the interaction of EEO laws with the [NLRA] is beyond the scope of this guidance.”

Second, while noting that employers have a duty to accommodate employees’ sincerely held religious beliefs (and signaling a willingness to consider “defenses based on religion”), the guidance fails to offer much concrete advice for balancing that duty against the duty to prevent harassment. For example, although this issue has already been the subject of litigation, the guidance sheds no light on how an employer should respond if an employee claims that a requirement to use a name or pronoun that does not conform with an individual’s biological identity at birth violates the employee’s religious beliefs. Rather, the guidance merely advises employers, on the one hand, that a religious accommodation may be required even if it disrupts the “harmony” of the workplace while, on the other hand, an employer cannot tolerate “religious expression that creates, or threatens to create, a hostile work environment.” The guidance does suggest there may be more to come from the EEOC, though, particularly on the subject of pronoun use in the context of religious accommodations, pending a final decision in a case out of the Seventh Circuit Court of Appeals.

Even with these gaps, the guidance provides valuable information for employers to audit and upgrade their policies and practices to prevent and remedy harassing conduct. However, employers must keep front of mind the agency’s caution that “even the best anti-harassment policy, complaint procedure, and training will not necessarily establish that the employer has exercised reasonable care to prevent harassment—the employer must also implement these elements effectively.” In other words, employers need to look carefully not only at their written policies but at their actual practices in light of the guidance.

About Duane Morris

Our attorneys provide clients advice about the steps organizations need to take to examine current anti-harassment policies, practices and training, and to move forward in line with the legal standards and best practices including those outlined in the guidance.

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