On Oct. 2, 2023, the Equal Employment Opportunity Commission (EEOC) published its Proposed Enforcement Guidance on Harassment in the Workplace in the Federal Register. Public comment to the proposal was open until Nov. 1, 2023. The proposed guidance, if issued in final, would be the first update to the EEOC’s guidance on workplace harassment since 1999. 

The proposed guidance addresses various updates in the law, including the U.S. Supreme Court’s decision in Bostock v. Clayton County, which held that the protections against sex-based discrimination under Title VII of the Civil Rights Act also include discrimination based on sexual identity and gender orientation. It acknowledges issues related to virtual harassment, considering the rise of remote employment opportunities, as well as issues related to the #MeToo movement. 

The EEOC’s proposed guidance coincides with an increase in 2022 in charges of discrimination filed with the EEOC, as well as an increase in lawsuits filed by the EEOC. 

Structure of the Guidance

The proposed guidance focuses on the following components of a harassment claim:

• Covered Bases and Causation: Was the conduct based on the individual’s legally protected characteristic under the federal EEO statutes?
• Discrimination with Respect to a Term, Condition, or Privilege of Employment: Did the harassing conduct result in discrimination with respect to a term, condition, or privilege of employment?
• Liability: Is there a basis for holding the employer liable for the conduct?

Conduct in Virtual Environments

With the increase in virtual and remote work in recent years, the proposed guidance provides insight into the types of virtual conduct that can constitute actionable harassment under federal EEO statutes.  It specifies that electronic communication using private phones, computers, or social media accounts – even if it does not occur in a work-related context – can affect the terms and conditions of employment.  The proposed guidance provides the following example:

• “[I]f an Arab American employee is the subject of ethnic epithets that a coworker posts on a personal social media page, and either the employee learns about the post directly or other coworkers see the comment and discuss it at work, then the social media posting can contribute to a racially hostile work environment.”

The proposed guidance also specifies that conduct occurring within the work environment, if conveyed using work-related communication systems, accounts, or platforms such as the employer’s email system, electronic bulletin board, instant message system, videoconferencing technology, intranet, public website, or official social media accounts, can contribute to a hostile work environment.  Such conduct can include, “sexist comments made during a video meeting, racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting, or sexual comments made during a video meeting about a bed being near an employee in the video image.” 

Issues Related to Sex-Based Discrimination

The proposed guidance also addresses Title VII’s prohibition of sex-based harassment and discrimination, which specifically includes harassment on the basis of sexual orientation, gender identity, pregnancy, childbirth, or related medical conditions.  The proposed guidance provides the following examples of conduct that can qualify as sex-based discrimination:

• Harassment based on a woman’s reproductive decisions, including decisions about contraception or abortion;
• Harassment based on the expression of gender identity, including intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (misgendering); and
• Harassment because an individual does not present in a manner that is stereotypically associated with that person’s gender.

Key Takeaway for Employers

The proposed guidance, if issued in final, will not have the force and effect of law, but instead is intended to provide clarity regarding requirements under the law or EEOC policies.  Employers should consider reviewing their internal anti-discrimination and harassment policies to identify any gaps based on the proposed guidance.  The proposed guidance further clarifies that an employer’s effective complaint process should include prompt and effective investigations and corrective action, adequate confidentiality protections, and adequate anti-retaliation protections.