In new draft guidance, the U.S. Equal Employment Opportunity Commission proposes to recognize broad protections for LGBTQ+ employees in the workplace and allow bias claims premised on abortion-related decisions. It also addresses the “virtual workplace” and how social media postings and other online content may contribute to a hostile work environment.

Although the proposed guidance is not legally binding, it sheds light on how courts analyze harassment claims and how the EEOC will investigate them.

Published on October 2, 2023, the draft guidance, titled Proposed Enforcement Guidance on Harassment in the Workplace, is open for comment through November 1, 2023. It marks the commission’s first published guidance on workplace harassment in nearly 25 years.

In the 144-page draft, the EEOC sets out to clarify the legal standards and employer liability applicable to harassment claims under federal anti-discrimination laws. It incorporates updates from recent case law and provides a variety of examples to illustrate what may constitute workplace harassment under federal law.

Notably, the proposed guidance incorporates the holding in the U.S. Supreme Court’s 2020 landmark decision in Bostock v. Clayton, in which the justices extended federal anti-discrimination laws to include sexual orientation and gender identify as protected characteristics.

The EEOC explains that harassment based on an individual’s gender identity may occur through “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 … consistent with the individual’s gender identify.”

It also addresses claims premised on perceptions – and misperceptions. It notes that harassment based on the perception that an individual is a member of a protected class is covered “even if that perception is incorrect” and even if the alleged harasser is a member of the same protected class.

Causation Principles Illuminated

An extensive section of the guidance focuses on proof of causation issues. Under federal law, a complainant must establish that the alleged harassed occurred because of the complainant’s protected characteristic.

The EEOC outlines the following principles that may apply in determining whether workplace harassment has taken place:

Facially Discriminatory Conduct: Conduct that explicitly insults or threatens an individual based on a protected characteristic. Further, conduct does not have to be directed at a particular job applicant or employee to expose an individual to the alleged discrimination. The proposed guidance lists the following example, “degrading workplace comments about women in general, even if they are not related to a specific female employee, show anti-female animus on their face, so no other evidence is needed to show that the comments are based on sex.”

Stereotyping: Harassment is based on a protected characteristic if it is based on social or cultural expectations, regardless of whether they are positive, negative, or neutral regarding how individuals of particular protected group usually act or appear.

Context: In some cases, the discriminatory nature of conduct is not readily apparent; however, an examination of factors such as “context, inflection, tone of voice, local custom, and historical usage,” may reveal discriminatory conduct.

Timing: If harassment began or escalated shortly after the harasser learned of the complainant’s protected status (such as when an employee learns that a coworker is pregnant), the timing may suggest that the harassment was discriminatory.

Comparative Evidence: Evidence showing qualitative and/or quantitative differences in the conduct directed against individuals in different groups can support an inference of discrimination.

Harassment in Virtual Work Environments

Following the Covid-19 pandemic, many workplaces expanded from a primarily physical space to include both physical space and a virtual workspace. In the guidance, the EEOC advises that conduct within a virtual work environment can contribute to a hostile work environment.

The proposed guidance cites examples of conduct in virtual work settings that could be deemed harassment:

• sexist comments made during a video meeting
• racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting
• sexual comments made during a video meeting about a bed being near an employee in the video image

Liability for Social Media and Other Non-Work Related Conduct

Generally, employers are not responsible for conduct that occurs in a non-work related context. However, when the conduct has consequences in the workplace and such conduct contributes to a hostile work environment, an employer may be liable. Such conduct may include electronic communications through phones, computers or social media accounts, if it impacts the workplace.

The proposed guidance cites the following example: “if an Arab-American employee is the subject of ethnic epithets that a coworker posts on a personal social media page, and either the employee learns about the post directly or other coworkers see the comment and discuss it at work, then the social media posting can contribute to a racially hostile work environment.”

Given the widespread use of technology, employers must be mindful that their employees’ out of work conduct, including posts on personal social media pages, can constitute unlawful harassment.

Preventing and Correcting Harassment

Employers must exercise reasonable care to prevent and correct harassment. The draft guidance outlines the factors that determine the reasonableness of an employer’s policy, complaint process and training.

Policy
For an employer’s anti-discrimination policy to be effective, at a minimum, it should:

• define what conduct is prohibited;
• be widely disseminated through the workplace;
• be comprehensible to all of its workers (including workers who have limited literacy skills or limited language proficiency);
• require supervisors to report harassment when they become aware of it;
• offer multiple avenues for employees to report harassment;
• identify accessible points of contact (with contact information) to whom reports of harassment should be made; and
• explain the employer’s complaint process, including the process’s anti-retaliation and confidentiality protections.

Complaint Process
For an employer’s complaint process to be effective, at a minimum, it should provide:

• for prompt and effective investigations and corrective action;
• adequate confidentiality protections; and
• adequate anti-retaliation protections.

Employers must maintain complete and accurate records of all harassment complaints, investigations, and any actions taken.

Training
For an employer’s training to be effective, at a minimum, it should:

• explain the employer’s anti-discrimination policy and complaint process, including any alternative dispute resolution process, and confidentiality and anti-retaliation protections;
• describe and provide examples of prohibited harassment;
• provide information about employees’ rights if they experience, observe, become aware of, or report conduct that they believe may be prohibited;
• provide supervisors and managers information about how to prevent, identify, stop, report, and correct harassment, and clear instructions for addressing and reporting harassment that they observe, that is reported to them, or that they otherwise become aware of;
• be tailored to the workplace and workforce;
• be provided on a regular basis to all employees; and
• be provided in a clear, easy-to-understand style and format.

Monitoring
To adequately monitor the workplace, employers should train supervisors and other appropriate officials on how to recognize potential harassment and require them to report or address harassment that they either are aware of (actual notice) or reasonably should have known about (constructive notice).

Conclusion

The long-awaited guidance document incorporates developments in case law that span nearly a quarter century.

Employers and employment lawyers will be scrutinizing the EEOC’s stance on the topics discussed above as well as a multitude of workplace harassment issues related to establishing liability; workplace policies; training; and notice and corrective actions. Some aspects of the proposed guidance may be challenged in the comment period.

Some aspects of the new guidance may prompt employers to update existing policies and procedures. Employers should consult an employment attorney when developing their anti-discrimination policies to ensure they stay up to date with EEOC guidance as well as federal, state and local developments.

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