On October 2, 2023, the Equal Employment Opportunity Commission (“EEOC”) published proposed enforcement guidance on workplace harassment, which, if finalized, would be the first update to workplace harassment guidance by the EEOC in nearly 25 years. While the EEOC attempted to provide updated harassment guidance in 2017, final guidance was never issued. The new proposed guidance takes into consideration various changes in federal law over the past two decades.

The proposed guidance provides “a legal analysis of standards for harassment and employer liability applicable to claims of harassment under the equal employment opportunity (‘EEO’) statutes enforced by the Commission.” It covers federal workplace harassment claims based on race (including characteristics linked to race like the employee’s name, cultural dress, accent, or grooming characteristics), color, religion, sex (including sexual orientation, gender identity, pregnancy and related conditions, and reproductive decisions, such as contraception and abortion), national origin, disability, age, or genetic information. The proposed guidance discusses topics such as facially discriminatory conduct, systemic harassment, and hostile workplace claims.

The EEOC drafted the proposed guidance through the lens of recent societal events, such as the #MeToo movement, and changes in law, including the 2020 U.S. Supreme Court ruling in Bostock v. Clayton County, which made discrimination on the basis of LGBTQ status a form of unlawful sex discrimination — the EEOC explained in a footnote in the proposed guidance that the reasoning in Bostock logically extends to claims of harassment.

In its proposed guidance, the EEOC addresses a variety of scenarios it considers workplace harassment, including its current position regarding harassment based on transgender identity, harassment with respect to social media usage, and harassment in the remote work context. For example, the proposed guidance indicates that intentional misgendering of a transgender employee or denying access to a bathroom consistent with the employee’s gender identity can constitute sex-based harassment. As to social media, the EEOC recognizes that offensive posts can amount to workplace harassment if they impact the workplace. Further, with the increased prevalence of remote work, the proposed guidance highlights potential virtual-based harassment activity, such as inappropriate comments made in the course of video meetings.

While not legally binding, the guidance provides insight into how the EEOC — currently comprised of a 3–2 Democratic majority — will treat workplace harassment claims going forward. Publication of the proposed guidance in the Federal Register triggers a notice-and-comment period whereby the public is invited to submit comments until November 1, 2023, prior to the issuance of final guidance.