On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) finally published its updated guidance on workplace harassment, formalizing the EEOC's position regarding additional protections for employees. The EEOC expanded the list of protected characteristics to include color and genetic information, and clarified that sexual orientation, gender identity, pregnancy, childbirth, and related medical characteristics are all included within "sex" as a protected characteristic.
This guidance replaces the prior guidance documents issued by the EEOC, creating a comprehensive document outlining best practices for preventing and remedying harassment claims. While the guidance is not legal precedent, employers should use it as a resource for crafting their anti-harassment policies, training, and complaint procedures.
The Guidance—EEOC's Key Positions
The guidance (which can be viewed here) walks through the three components of a harassment claim under federal law: (1) covered bases and causation; (2) discrimination with respect to a term, condition, or privilege of employment; and (3) liability, providing 77 hypothetical examples of unlawful harassment to further clarify its position.
Key positions taken by the EEOC include the following:
- "Color" is a standalone protected characteristic under Title VII. While harassment based on color is "sometimes related to harassment based on race or national origin, color-based harassment due to an individual's pigmentation, complexion, or skin shade or tone is independently covered by Title VII."
- Pregnancy, childbirth, and related medical conditions fall under "sex" as a protected characteristic under Title VII. Specifically, issues such as lactation, using or not using contraception, or deciding to have, or not to have, an abortion qualify as unlawful harassment if that harassment "is linked to a targeted individual's sex."
- Sexual orientation and gender identity are included within the protected characteristic of "sex" under Title VII. Specific conduct identified by the guidance includes making epithets and physically assaulting an employee based on their sexual orientation and/or gender identity, "outing (disclosing someone's sexual orientation or gender identity without the individual's permission)," harassing an individual because they do "not present in a manner that would stereotypically be associated with that person's sex," misgendering (i.e., "repeated and intentional use of a name or pronoun inconsistent with the individual's known gender identity"), and denying a person access to a sex-specific facility consistent with the individual's gender identity (e.g., a bathroom).
- "Genetic information" is a protected characteristic under the Genetic Information Non-Discrimination Act, making it unlawful to harass an individual based on their, or a family member's, genetic testing or their family medical history. For example, it would be unlawful to harass an employee "because [he/she] carries the BRCA gene, which is linked to an increased risk of breast and ovarian cancer."
- Intraclass harassment, or harassment based on a protected characteristic that is conducted by a member of the same protected class (i.e., age-based harassment conducted by someone who is over 40 years old), is prohibited under Title VII.
- Harassing conduct that occurs in a virtual work environment can still create a hostile work environment. This includes conduct (written, verbal, or images) conveyed using an "employer's email system, electronic bulletin board, instant message system, videoconferencing technology, intranet, public website, [and] official social media accounts."
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This new guidance has already been challenged. On May 14, 2024, attorneys general of 18 states filed a lawsuit against the EEOC in the U.S. District Court for the Eastern District of Tennessee, alleging that the guidance unlawfully expands Title VII to create new gender identity rules, and that the EEOC does not have the authority to take such action.
While this guidance is not legally binding, it is meant to serve as a resource "for EEOC staff and the staff of other agencies that investigate, adjudicate, or litigate harassment claims." Thus, the lawsuit claims that the EEOC's position will force employers to make significant changes to their practices in order to avoid EEOC complaints.
This lawsuit, which is in its early stages, will continue to be monitored by Venable's Labor and Employment Group. However, as this case proceeds, employers should still rely on the EEOC guidance as a resource when adjusting their anti-harassment policies and practices.
Additional Educational Tools and Resources
In addition to the guidance, the EEOC also published the following documents to further assist with preventing and addressing workplace harassment:
