The U.S. Equal Employment Opportunity Commission (EEOC or Commission) proposed updated workplace harassment guidance on Sept. 29, 2023, reflecting the Commission's position on important legal issues concerning harassment claims under the federal workplace anti-bias laws it enforces. These laws protect employees from harassment based on specific, enumerated "covered bases": 1) race and color, 2) national origin, 3) religion, 4) sex, 5) disability, 6) age (for employees 40 or older), and 7) genetic information. In addition to explaining the applicable legal standards and employer liability for these claims, the guidance also includes instructions for employers to provide adequate anti-harassment policies, trainings and complaint procedures for employees, as well as train supervisors to recognize and report instances of harassment.

The updated guidance incorporates changes reflecting current case law on issues of workplace discrimination and harassment, including the U.S. Supreme Court's 2020 decision in Bostock v. Clayton County, which held that the meaning of "sex" in Title VII of the Civil Rights Act of 1964 extends to sexual orientation and gender identity. Additionally, the changes reflect changes in the social climate, such as the #MeToo movement and the proliferation of digital technology.

This Holland & Knight alert firstly provides a brief summary of the new changes to workplace harassment laws detailed in the proposed guidance. It will then highlight some of the recent trends in this area of law the Commission has noticed, which foreshadow potential workplace harassment claims employers may face in the near future.

Covered Bases

The updated guidance broadens the types of harassment that can be based on sex, including harassment based on pregnancy, childbirth and other "related medical conditions." The broadened definition protects against harassment based on employees' decisions pertaining to contraception and abortion, as well as lactation.

Additionally, sex-based harassment encompasses harassment based on employees' sexual orientation or gender identity. In a footnote, the Commission noted that although the Bostock decision concerned allegations of discriminatory discharge, the "Supreme Court's reasoning in that decision logically extends" to claims of workplace harassment based on an employee's sexual orientation or gender identity. According to the guidance, harassment may range from physical assault to intentional and repeated misgendering (use of a name or pronoun inconsistent with an individual's gender identity), or denying access to a bathroom consistent with an individual's gender identity.

Moreover, the guidance expands the definitions of race and color, national origin, religion, sex, disability and age as "covered bases" to include harassment based on stereotypes of individuals belonging to those groups. For example, it protects against harassment based on stereotypes of individuals belonging to a certain race or culture. It also protects against harassment based on stereotypes of older workers, such as pressuring an older employee to transfer to a less technology-focused position or encouraging an older employee to retire.

Virtual Harassment That May Create a Hostile Work Environment

The guidance additionally addresses how social media postings and other online content can contribute to hostile work environments, even if it occurs outside of the workplace and is not work-related. Specifically, communications conveyed using work-related systems, accounts or platforms – including an employer's email system, electronic bulletin board, instant message system, videoconferencing technology, intranet, public website or official social media accounts – are considered to be conducted within a "virtual work environment," which can contribute to a hostile work environment. Additionally, virtual conduct that occurs in a non-work-related context, such as communications over private phones, computers or social media accounts, may create a hostile work environment if it impacts the workplace. For example, if private communications that use racial epithets are released and/or discussed by co-workers at a workplace, then the communications can contribute to a racially hostile work environment.

Criteria for Effective Anti-Harassment Policies

To prevent workplace harassment and avoid liability, employers must prove they exercised reasonable care to prevent harassment and to promptly correct harassment once notified of any harassing instances. When considering whether an employer took "reasonable care," courts will first consider the effectiveness of its anti-harassment policy, including whether the policy defines what conduct is prohibited and is widely disseminated, whether the policy is accessible and comprehensible to workers – including those who may have barriers to comprehension (i.e., limited literacy skills or limited proficiency in English) – and whether the policy requires supervisors to report harassment as soon as they are aware of it.

In addition to the above criteria, the updated guidance lists additional, relevant criteria for determining whether an employer's anti-harassment policy adequately prevents and corrects workplace harassment. These include:

• whether the policy offers "multiple" avenues for reporting harassment, thereby allowing employees to contact someone other than their harassers
• whether the policy "clearly identifies accessible points of contact" to whom reports of harassment should be made and includes contact information
• whether the policy explains the employer's complaint process, including the process' anti-retaliation and confidentiality protections

Final Tips for Employers

Throughout the guidance, the Commission noted developing trends with workplace harassment claims. For example, it noted that "most" harassment claims based on hostile work environment involve a series of acts, rather than a single or few. Additionally, given the proliferation of digital technology, it warned that it is "increasingly likely" for future workplace harassment to be based on nonconsensual distribution of real or computer-generated intimate images using social media.

The Commission also described affirmative actions for employers to reduce the likelihood of unlawful harassment. Because employees may feel uncomfortable reporting harassment, it advises employers to conduct climate surveys of employees to determine whether employees believe that harassment exists in the workplace and is tolerated and by repeating the surveys to ensure that changes to address potential harassment have been implemented, as employees may be reluctant to report instances of harassment. The EEOC further advised employers to conduct bystander intervention training to create a sense of collective responsibility on the part of workers and empower them to be engaged bystanders in preventing harassment.

The updated guidance provides appreciated clarity for workplace harassment claims, which have surged since employees returned to work after the COVID-19 pandemic. Between fiscal years (FY) 2016 and 2022, more than one-third of charges received by the EEOC included an allegation of harassment, and since FY 2018, more than half of federal sector EEOC complaints include an allegation of harassment.

The proposed guidance, which was published in the Federal Register on Oct. 2, 2023, is open for public comment until Nov. 1, 2023. After reviewing public input, the Commission will consider appropriate revisions before finalizing the guidance, which would supersede the guidance released by EEOC in the 1980s and 1990s.