On October 2, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) issued Proposed Enforcement Guidance on Harassment in the Workplace (Proposed Enforcement Guidance), which will supersede its prior guidance on unlawful harassment once finalized. This new guidance is the first formal update to the EEOC's harassment guidance in roughly 30 years and is meant to capture updates in legal requirements in light of more recent cases.

The Proposed Enforcement Guidance is structured around the three components of a harassment claim and specifically offers insight into unlawful discrimination and harassment on the basis of sexual orientation and gender identity, following recent legal developments, including the Supreme Court's ruling in Bostock v. Clayton County in 2020. The Proposed Enforcement Guidance also provides updated information on how electronic communications may give rise to unlawful discrimination and harassment and recognizes employers' increased reliance on remote work following the COVID-19 pandemic. Finally, with this Proposed Enforcement Guidance, the EEOC has signaled that it intends to continue to place a greater emphasis on systemic discrimination and harassment issues.

Review of Harassment Basics

Much of the Proposed Enforcement Guidance is spent reviewing and compiling prior guidance on harassment and discrimination, and will not come as a surprise to many employers. First, the EEOC's guidance reviews that harassment is unlawful only when it is based on an employee's legally protected characteristic, including race and color, national origin, religion, sex (including pregnancy, childbirth, or related medical conditions and sexual orientation and gender identity), age, disability, and genetic information. Additionally, the Proposed Enforcement Guidance covers how causation is determined, including by reviewing principles such as when causation is established by facially discriminatory conduct, stereotyping, social context, timing, and comparative evidence.

Second, the EEOC discusses forms of unlawful harassment—including quid pro quo harassment and hostile work environment harassment—as well as the scope of conduct giving rise to actionable harassment claims. Finally, the EEOC outlines the standards of liability that apply in different contexts and potential defenses to such liability.

Updated Guidance on Sexual Orientation and Gender Identity

The Proposed Enforcement Guidance takes an updated approach to sexual orientation and gender identity discrimination. These two types of discrimination have been the subject of significant litigation in recent years. With the guidance from these recent cases, the EEOC clarifies ways in which sexual orientation and gender identity harassment may occur in the workplace by giving examples of conduct that may amount to such harassment, including:

• 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 a person's gender;
• Intentional and repeated use of a name or pronoun inconsistent with the individual's gender identity; and
• Denial of access to a bathroom or other sex-segregated facility consistent with the individual's gender identity.

The Proposed Enforcement Guidance includes as one hypothetical example a fast-food employee who alleged harassment based on her gender identity because, though she identifies as female, her supervisors, coworkers, and customers regularly and intentionally misgender her. Her coworkers also ask her questions about her sexual orientation and anatomy and have asserted that she is not female. The EEOC makes clear that an employee experiencing these behaviors has made a claim for harassment based on gender identity.

Updated Guidance on Electronic Discrimination and Harassment

The EEOC also clarifies that electronic conduct can be considered to occur within the work environment and can constitute unlawful harassment. The EEOC specifically notes that conduct within the virtual work environment (such as using employer email and messaging systems) can contribute to an actionable hostile work environment. To illustrate this concept, it provides the examples of sexist comments made during a video meeting and racist imagery visible in the employee's background during a video meeting, which may create a hostile work environment. These examples are new in the EEOC's guidance, and reflect the changing landscape of the hybrid workplace.

The EEOC also highlights that employers may be liable for conduct that occurs in a non-work-related context when the conduct impacts the workplace, including as a result of electronic communications using private phones, computers, or social media accounts.

Guidance on Systemic Discrimination and Harassment

Finally, the EEOC devotes an entire section of the Proposed Enforcement Guidance to the issue of systemic harassment. Within this section, the EEOC explains that systemic harassment can occur when harassment affects multiple complainants or when the employer has engaged in a "pattern or practice" of discrimination. The EEOC also stresses that to address systemic harassment, employers often must go beyond taking action with respect to a specific individual and instead develop comprehensive company-wide procedures. While this guidance isn't necessarily new, it does reflect that the EEOC is making addressing systemic harassment a more significant enforcement priority.

Next Steps for Employers

Although the Proposed Enforcement Guidance does not have the force and effect of law, it reflects how the EEOC and other agencies view harassment claims and discusses in significant detail how courts have adjudicated discrimination and harassment cases. Accordingly, employers should review their antidiscrimination and harassment policies not only for compliance with federal, state, and local law, but also to ensure compliance with the issues highlighted in the Proposed Enforcement Guidance. Additionally, given the new guidance surrounding harassment on the basis of sexual orientation and gender identity, employers may consider whether it is beneficial to their workforce to implement a gender transition policy. Such a policy might outline how to navigate privacy considerations of the employee transitioning and provide guidance to employees on how to avoid misgendering transitioning employees or what to do if unintentional misgendering occurs.

Finally, employers may also consider providing additional training on workplace discrimination and harassment to employees that incorporates some of the examples and hypotheticals used in the Proposed Enforcement Guidance. This sort of refresher training can be used to address emerging issues involving the use of technology and larger company-wide, systemic initiatives targeted at maintaining a workplace free of discrimination and harassment.