The Equal Employment Opportunity Commission issued its long-awaited final guidance on harassment claims, which went into immediate effect. Per EEOC Chair Charlotte A. Burrows, the final guidance, the EEOC’s first update on the subject in roughly 25 years, in intended to act as a “comprehensive resource” regarding “best practices for preventing and remedying harassment” as well as clarifying recent legal developments on the subject.
The EEOC is responsible for enforcing federal laws banning discrimination against a worker or job applicant on the basis of a protected characteristic. Protected characteristics covered by these laws are “race, color, religion, sex (including sexual orientation; gender identity; and pregnancy, childbirth, or related medical conditions), national origin, disability, age (40 or older), and genetic information (including family medical history).” The Final Guidance is organized by looking at what the EEOC deems the three components of a harassment claim: 1. Was harassing conduct based on a legally protected characteristic? 2. Did harassing conduct result in discrimination with respect to a term, condition, or privilege of employment? 3. Is there a basis for holding the employer liable?
While the final guidance largely reinforces the standards already upheld by the EEOC in terms of harassment, it also includes some key updates. One key addition in the final guidance is to follow recent SCOTUS precedent in Bostock v. Clayton County, Georgia, to recognize anti-discrimination protections for LGBTQ+ workers.
While not legally binding, the final guidelines provide a valuable resources for employers to consult when evaluating anti-harassment and discrimination policies. Employers may be particularly interested in the numerous hypotheticals in the guidelines that reflect instances of potential unlawful harassment.
