On September 29, 2023, the U.S. Equal Employment Opportunity Commission (“EEOC” or “Commission”) released its proposed Enforcement Guidance on Harassment in the Workplace (“Proposed Guidance”). The Proposed Guidance “is intended to communicate the Commission’s position on important legal issues” when analyzing claims of alleged unlawful harassment in the workplace. Given the “renewed public focus” on sexual and racial harassment cases, the Proposed Guidance reemphasizes long established law in the context of the modern workplace. The Proposed Guidance focuses on the three components of a harassment claim: (1) Covered Bases and Causation; (2) Discrimination With Respect to a Term, Condition, or Privilege of Employment; and (3) Liability. The key provisions of the Proposed Guidance are highlighted below.
Covered Bases and Causation
The Proposed Guidance explicitly forbids harassment based on sexual orientation and gender identity, including the expression of that identity. This reflects the Supreme Court of the United States’ decision in Bostock v. Clayton County, 140 S. Ct. 1731, 1747 (2020), where the Court found that “sex” under Title VII includes LGBTQ+ persons. While that decision concerned a discriminatory discharge, the Commission expressed that “the Supreme Court’s reasoning in the decision logically extends to claims of harassment.” Examples of conduct that may exhibit harassment based on sexual orientation and gender identity include, among other things, “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); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.” According to the EEOC, the intentional and repeated misuse of an individual’s gender identity, by co-workers or customers, is sufficient to state a claim of harassment where the allegations are known, but unaddressed, by the supervisor.
In addition, the Proposed Guidance prohibits harassment based on (1) an individual’s association with someone in a protected class; (2) the perception that an individual has a particular protected characteristic, even if the perception is incorrect; (3) an individual’s genetic information, such as harassing an employee because their mother has cancer; and (4) social or cultural expectations, whether positive, negative, or neutral, regarding how persons of a particular protected group, usually act, appear, or behave. In turn, the EEOC’s aggressive approach toward harassment is consistent with its strategic enforcement plan “to prevent and eliminate unlawful employment practices.”
Discrimination With Respect to a Term, Condition, or Privilege of Employment
It is well established that an employer will be liable for unlawful harassment where the harassment (1) results in an explicit change to the terms or conditions of employment based on a protected characteristic; or (2) the conduct is “sufficiently severe or pervasive” to create an objectively and subjectively hostile work environment. The Proposed Guidance reminds employers that conduct need not be both severe and pervasive to be actionable. Instead, the more severe the harassment, the less pervasive it may be, and vice versa, to establish a hostile work environment. Similarly, actionable harassment does not require a showing of psychological injury, though evidence of such harm may be relevant to a plaintiff’s prima facie case.
Of particular importance, the Proposed Guidance clarifies that a complainant is not required to prove that the harassing conduct was both subjectively harassing and unwelcome. In the Commission’s view, demonstrating unwelcomeness logically proves subjective hostility. Here, the Commission sought to clarify the unwelcomeness inquiry established by the 1980 EEOC Guidelines and the Supreme Court’s decision in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986), where the Court stated that the “[t]he gravamen of any sexual harassment claim is that the alleged sexual advances were ‘unwelcome.’” However, when the Supreme Court later refined the hostile work environment analysis to require a showing of both subjective and objective hostility, the Court did not explicitly eliminate a showing of unwelcomeness as the gravamen of a harassment claim. As a result, the Commission noted a jurisdictional divide, with some courts requiring a showing of “unwelcomeness” as a separate element in a plaintiff’s prima facie harassment case, while other courts do not. The Commission therefore clarified that, in its view, a showing of unwelcomeness is an unnecessary step in a court’s analysis. Yet, evidence of unwelcomeness may be relevant to the showing of objective hostility, where for example, the alleged harasser had notice that the conduct was unwelcome. For example, the Commission explained that an actor’s persistent flirtatious behavior may be objectively hostile if the actor is on notice that their behavior is unwelcome.
Given the increased prevalence of remote employment, the Proposed Guidance also emphasizes that workplace behaviors in virtual work environments can contribute to a hostile work environment. For instance, sexist comments during virtual meetings or inappropriate imagery in an employee’s workspace while participating in a video meeting may give rise to a harassment claim. Relatedly, employers may be liable when an employee’s harassing activity outside the workplace, including over social media, negatively affects the workplace. As explained by the Commission, “[g]iven 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.”
Liability
The Proposed Guidance also focuses on the multiple standards for employment liability. The determination of what standard applies depends on whether the alleged harasser is the proxy or alter ego of the employer, a supervisor, or a non-supervisory employee (i.e., coworker or non-employee). The EEOC provides employers with the framework for establishing an affirmative defense to a claim of harassment against a supervisor where the harassment does not result in a tangible employment action. There are two necessary elements in establishing this affirmative defense: (1) the employer’s exercise of reasonable care to prevent and promptly correct any sexually harassing behavior; and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
The first prong of the affirmative defense requires the employer to show that it acted reasonably to both prevent and correct the alleged harassment. While Title VII does not specify what steps an employer must take to establish that it acted reasonably, the Commission explains that the inquiry typically begins by identifying the policies and practices an employer implemented to prevent and respond to harassment. The Proposed Guidance provides several examples of what an effective anti-harassment policy, complaint procedure, and training should include to establish that an employer acted reasonably. Specifically, the Proposed Guidance clarifies that an effective anti-harassment policy should define what conduct is prohibited, be “comprehensible to workers, including those who the employer has reason to believe might have barriers to comprehension” (i.e., limited literacy skills), offer multiple avenues to report harassment, and, inter alia, explain the employer’s complaint process. The EEOC warns, however, that the implementation of those procedures standing alone is insufficient if the employer fails to correct and address harassing conduct of which it knew or should have known. As to the second prong, an employer may limit its exposure to damages if it is determined that the employee unreasonably delayed complaining of the unlawful harassment.
The EEOC also focused on the standard for employment liability related to non-supervisory employees. In particular, liability is imposed where an employer negligently fails to prevent harassment. This inquiry is fact intensive, but considerations noted by the EEOC include the employer’s efforts to monitor the workplace and steps to minimize known or obvious risks of harassment. The Proposed Guidance also provides detailed information related to how employers should conduct an adequate and prompt investigation once they are aware of potentially harassing conduct by a non-supervisory employee.
The EEOC advised that an investigation should be “conducted reasonably soon” after the employer is on notice of possible harassment. What is “reasonably soon” is fact determinative, and considerations include the “nature and severity of the alleged harassment and the reasons for delay.” For instance, the EEOC noted that an employer who opens an investigation two months after a complaint is filed “can be presumed, absent other facts, not to have acted promptly.” Relatedly, an adequate investigation is sufficiently thorough if it “arrive[s] at a reasonably fair estimate of truth.” The EEOC therefore recommends that the investigator be well trained to interview witnesses and evaluate credibility.
Finally, the EEOC reminds employers of their responsibility to prevent and correct harassment of employees who are hired by temporary employment agencies. While both the temporary agency and the client are not required to take duplicative corrective action, they are expected to take corrective action, either independently or in cooperation.
Systemic Harassment
The EEOC recommends that employers address any “pattern or practice” of discrimination to remedy any systemic discrimination in the workplace. To avoid liability, an employer is encouraged to develop “comprehensive company-wide procedures” where there is evidence of frequent individual incidents of harassment. Employers are encouraged to retain all records related to harassment complaints and investigations to best identify any “pattern or practice” of systemic discrimination.
Employer Takeaways
The Proposed Guidance invited public comments, which must be submitted by November 1, 2023. The EEOC will then decide on whether to issue a final guidance and, if so, any revisions to make based on the comments received. If finalized, the Proposed Guidance will be the first document issued on harassment by the Commission since 1999. While the guidance will not have the force and effect of law, it will provide employers a detailed legal analysis of harassment claims under the statutes enforced by the Commission. Although no immediate action is required, employers are encouraged to review their current workplace policies and reference the Proposed Guidance for a list of resources to prevent and address harassment.
