On October 2, 2023, the U.S. Equal Employment Opportunity Commission (“EEOC”) published its proposed guidance on workplace harassment claims, Enforcement Guidance on Harassment in the Workplace. The proposal is open for comment through November 1, 2023, in the Federal Register.

Employers will want to prepare for the EEOC’s new standards for employer liability, and review its examples of workplace harassment. The Agency is focused on enforcement given changes to the law and the modern workplace:

• The #MeToo movement: The EEOC’s approach to hostile work environment claims includes findings from the 2016 report published by the EEOC’s Select Task Force on the Study of Harassment in the Workplace. The guidance provides a description of the minimally adequate features the EEOC looks for in employers’ anti-harassment policies, complaint procedures, and trainings, to assess whether an employer has taken reasonable care to prevent and correct harassment. The EEOC also notes employers’ responsibility to identify known or obvious risks of harassment, such as harassment against employees who are “vulnerable, young, do not conform to workplace norms based on societal stereotypes, or who are assigned to complete monotonous or low-intensity tasks.”
• The virtual working environment: The EEOC addresses conduct that takes place virtually, emphasizing that such conduct will be deemed to take place within the work environment if conveyed using work-related systems, accounts, or platforms, including employers’ email platforms, instant message systems, and videoconferencing technologies. Employers can also be held liable for virtual conduct that occurs using private phones, computers, or social media accounts, if the conduct impacts the workplace.
• The U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, Georgia: Applying the Supreme Court’s holding in Bostock, the EEOC advises that the scope of sex-based harassment claims includes harassment based on sexual orientation and gender identity. The EEOC provides examples of such harassment, including epithets, physical assault, “harassment because an individual does not present in a manner that would stereotypically be associated with that person’s gender,” intentional and repeated misgendering, and the “denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.”
• The EEOC also includes as enforcement targets pregnancy-related medical conditions, and harassment arising from an individual’s decisions about contraception and abortion.

The proposed guidance, if finalized, will supersede several of the EEOC’s past advice documents on harassment, which are decades old. Many employers have already updated their policies, training, and investigation processes to prevent and address harassment, but this guidance is another strong signal that the EEOC intends to increase its enforcement efforts. Employers should review this proposed guidance and consider further updates and training.

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