On October 2, 2023, the United States Equal Employment Opportunity Commission (“EEOC”) issued its long-awaited proposed guidance regarding harassment in the workplace (the “Guidance”). In January 2017, the EEOC published proposed guidance on workplace harassment under the Trump Administration, which was never formally adopted or enacted. Over six years later, the EEOC released the Guidance, which reflects various changes in the law over the years, as well as addresses modern workplace harassment concerns arising from the #MeToo movement and the advent of widespread hybrid work.

If formally adopted by the EEOC, the Guidance would supersede existing EEOC guidance documents issued during the 1990s, as well as the section on harassment in the EEOC Compliance Manual. The public has through November 1, 2023 to provide comments regarding the Guidance. Below is a summary of key portions of the Guidance, which is structured to align with the three components of a harassment claim.

COVERED BASES AND CAUSATION

• This section of the Guidance addresses that workplace harassment runs afoul of federal equal employment opportunity (“EEO”) laws only if it is based on an employee’s legally protected characteristic(s), which are listed within the Guidance.
• Notably, the Guidance references the United States Supreme Court’s decision in Bostock v. Clayton County, which held that Title VII of the Civil Rights Act (“Title VII”) covers discrimination claims based on gender identity and sexual orientation, and confirmed that Title VII also applies to harassment claims based on an individual’s gender identity or sexual orientation. Indeed, the Guidance provides that this type of harassment may include misgendering and denying an employee access to a bathroom that is consistent with the employee’s gender identity.
• The Guidance is clear that stereotyping an individual based on negative or positive social or cultural expectations concerning how individuals of a particular group should act may constitute harassment.
• The Guidance notes that causation is established if the evidence demonstrates that the employee was subjected to harassment because of their protected characteristic.

HARASSMENT ARISING FROM DISCRIMINATION WITH RESPECT TO A TERM, CONDITION, OR PRIVILEGE OF EMPLOYMENT

• While this section discusses “quid pro quo” harassment, it primarily focuses upon hostile work environment as it is the more common harassment claim asserted by employees. The Guidance sheds light on the type of conduct that meets the “severe or pervasive” standard required to establish a hostile work environment claim under the EEO laws and affirms that the conduct at issue “need not be both severe and pervasive: [t]he more severe the harassment, the less pervasive it must be, and vice versa[.]”
• The Guidance confirms that hostile work environment claims may arise from conduct occurring in a work-related context outside of the workplace (i.e., virtually or off-site) and also details that employers may be liable for conduct occurring in a non-work related context (i.e., through private phones, computers, or social media accounts) when that conduct impacts the workplace. That being said, the Guidance provides that EEO laws do not impose a general civility code that covers “run-of-the-mill boorish, juvenile, or annoying behavior.”
• According to the Guidance, an individual may establish a harassment claim based on conduct that is not specifically directed at them.

EMPLOYER LIABILITY

• This section of the Guidance discusses when an employer may be held liable for harassment, which depends upon whether the alleged harasser is a supervisor, non-supervisor, proxy/alter ego of the employer, or any other person in the workplace.
• Additionally, the Guidance describes the Farragher-Ellerth affirmative defense, which shields an employer from liability in certain situations where the harassment was committed by a supervisor and there was no tangible employment action against the employee. Significantly, employers are required to have effective, anti-harassment policies and procedures for the Farragher-Ellerth affirmative defense to potentially apply.

Additionally, the Guidance contains a section regarding “systemic harassment”, which involves situations where various individuals of the same protected characteristic are subjected to similar forms of discrimination. To combat such “systemic harassment”, the Guidance recommends employers retain records of all harassment complaints and investigations and use these records to help identify any patterns of harassment in the workplace. Once any patterns are identified, the Guidance states that the employer must adopt a systemic remedy versus taking steps to address harassment of particular individuals.

Significantly, the Guidance includes other pieces of proactive guidance for employers, such as creating an effective anti-harassment program, conducting internal investigations, and taking corrective actions in response to any workplace harassment.

Overall, all employers should carefully review the Guidance as it provides valuable insight into the EEOC’s interpretation of the current status of the law and how the EEOC would prosecute harassment claims. Additionally, employers should pay close attention to whether the EEOC will formally adopt the Guidance as is or make any changes to the final version. Employers should take note, however, of any applicable state anti-harassment laws, which may impose more onerous standards than what is set forth in the Guidance.