On September 29, 2023, the U.S. Equal Employment Opportunity Commission (the “EEOC”) released its draft guidance concerning harassment in the workplace.[1] The updated guidance reflects notable changes in law, including the U.S. Supreme Court’s decision in Bostock v. Clayton Cnty., Georgia,[2] the #MeToo movement, and emerging issues, such as virtual or online harassment. This is the EEOC’s first attempt to issue enforcement guidance on workplace harassment since 2017. The guidance was published in the Federal Register on October 2, 2023. The public can submit comments regarding the guidance through this link until November 1, 2023.
The updated EEOC guidance contains examples that reflect different scenarios of harassment, includes up to date case law on workplace harassment, and discusses how digital technology and social media can contribute to a hostile work environment.
Harassment on the Basis of Sexual Orientation and Gender Identity
The U.S. Supreme Court in Bostock held that discrimination based on sexual orientation or gender identity is a form of sex discrimination under Title VII. Although Bostock was a discrimination case and not a harassment case, the EEOC states that “sex-based harassment includes harassment on the basis of sexual orientation and gender identity, including how that identity is expressed.” In light of the U.S. Supreme Court’s ruling in Bostock, the EEOC listed examples of sexual harassment based on an individual’s sexual orientation and gender identity in its guidance such as:
- Stating epithets regarding sexual orientation or gender identity;
- Physical assault due to an individual’s sexual orientation or gender identity;
- Harassment because an individual does not present in a manner that would stereotypically be associated with that person’s gender;
- Intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (misgendering); and
- The denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.
Harassment on the Basis of Pregnancy, Childbirth, and Related Medical Conditions
In addition to harassment on the basis of sexual orientation and gender identity, the EEOC notes that sex-based harassment includes harassment on the basis of pregnancy, childbirth, or related medical conditions, including lactation. This includes harassment based on a woman’s reproductive decisions, such as decisions about contraception or abortion.
Digital Technology and Social Media
The EEOC notes that conduct within a virtual work environment can contribute to a hostile work environment. For example, this can include sexist comments made during a video meeting, racist imagery that is visible in an employee’s workplace 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.
Further, the EEOC took artificial intelligence and digital technology into account when drafting its updated guidance. The EEOC notes that given the proliferation of digital technology, it is increasingly likely that the non-consensual distribution of real or computer-generated intimate images using social media can contribute to a hostile work environment if it impacts the workplace.
What is the Effect of EEOC Guidance?
EEOC guidance does not have the force of law. Courts may give deference to this EEOC guidance in assessing harassment claims, or they may reject it altogether. However, this guidance provides employers with helpful information about how the EEOC will interpret and enforce federal anti-harassment laws when investigating charges of discrimination and handling its own litigation matters, including claims under Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act.
Either way, employers should be aware of recent changes in the EEOC’s guidance and review their current practices and policies concerning harassment in the workplace with these changes in mind. When a question arises, it is always best to contact an experienced employment law attorney.
[1] See EEOC, PROPOSED Enforcement Guidance on Harassment in the Workplace, https://www.eeoc.gov/proposed-enforcement-guidance-harassment-workplace#_ftn1 (last visited October 3, 2023).
[2] Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731 (2020).
