EEOC Issues New Guidance on Harassment In The Workplace

EEOC Issues New Guidance on Harassment In The Workplace

On April 29, 2024, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a new guidance document on workplace harassment titled “Enforcement Guidance on Harassment in the Workplace”. The newly approved enforcement guidance, which became effective upon issuance, provides an updated version of the EEOC’s position on legal concerns and standards regarding harassment claims brought under the statutes enforced by the EEOC and renders a number of previous enforcement guides (from the 1980s and 1990s) obsolete. See full guidance.

The lengthy enforcement guidance focuses on the components of a harassment claim, including covered bases, causation, discrimination with respect to a term, condition or privilege of employment, and liability. Some takeaways are highlighted below and are not intended to be exhaustive. It is suggested that employers discuss with counsel and internal departments, such as human resources personnel, possible updates to harassment prevention policies, trainings, and procedures in light of the newly issued EEOC guidance.

Overview of Covered Bases

Harassment must be based on an employee’s legally protected characteristic or a combination of two or more protected characteristics. The protected characteristics covered by the laws enforced by the EEOC are race, color, religion, sex, national origin, disability, age, and genetic information.

The new guidance indicates harassment based on color is sometimes related to harassment based on race or national origin. However, harassment based solely on color is covered by Title VII and includes harassment “due to an individual’s pigmentation, complexion, or skin shade or tone[.]” The guidance gives the example of where a supervisor harasses black employees with darker skin tones, but does not harass black employees with lighter skin tones. This is just one example provided in the new guidance but is not exhaustive of all examples of harassment based on color.

Harassment based on religion includes commentary on a person’s religion, including atheism or a lack of religious belief, religious practices, religious dress, and religious stereotypes. Harassment based on religion can also occur in connection with a request for a religious accommodation, the receipt of a religious accommodation, or explicitly or implicitly coercing employees to engage in religious practices in the workplace.

The guidance makes clear that harassment based on sex under Title VII goes beyond gender and includes pregnancy, childbirth and related medical conditions, sexual orientation, and gender identity. Regarding sex based harassment based on pregnancy, childbirth, or related medical conditions, harassment can be found in connection with issues such as lactation, using or not using contraception, or deciding to have or not to have an abortion. These examples of harassment would be covered by the laws enforced by the EEOC where the harassment “is linked to a targeted individual’s sex[.]”

Sex based harassment also includes harassment based on sexual orientation or gender identity, which includes how that identity is expressed. Examples of conduct that would fall within this category includes outward displays of harassment (e.g., epithets regarding sexual orientation or gender identity or physical assault), but also less obvious displays of harassment such as repeated use of a name or pronoun inconsistent with the individual’s known gender identity. The guidance also makes clear that denial of access to a bathroom consistent with the individual’s gender identity can constitute harassment.

The new guidance also discusses harassment based on genetic information, which is one of the subjects of the Genetic Information Nondiscrimination Act (“GINA”). Unlawful harassment based on genetic information could include harassment based on an individual’s, or an individual’s family member’s, genetic test or on the basis of an individual’s family medical history. The guidance provides the example of harassment against an employee who carries a specific gene which is linked to an increased risk of breast cancer.

Harassment in Virtual Workplace

Of importance, is the guidance’s commentary on harassment occurring virtually. Following the COVID-19 pandemic, many employers have remained in a completely virtual or hybrid setting. Accordingly, the guidance notes that workplace harassment is not solely limited to the physical work environment (i.e., the office), but harassing conduct can also take place in a virtual work environment such as in video meetings or work chats. The guidance provides examples such as making racist, ageist or other harassing comments during a video meeting, in addition to other harassing comments made during video calls about an employee’s surroundings, such as a bed being near the employee.

Practical Implications

The EEOC’s new guidance is a lengthy document that outlines the EEOC’s positions on certain legal standards, but is in no way a replacement for the actual statutes enforced by the EEOC.

For additional information, please contact Burke Warren attorneys Rachel Bossard at 312-840-7029 / rbossard@burkelaw.com or Marissa Pinto at 312-840-7095 / mpinto@burkelaw.com.