Employer Alert: EEOC Updates Guidance on Workplace Harassment and Enforcement

June 27, 2024

On April 29, 2024, for the first time in 30 years, the Equal Employment Opportunity Commission (“EEOC”) has issued updated workplace harassment and enforcement guidelines (the “Guidance”). The Guidance is effective immediately.

The Guidance supersedes and expands upon prior EEOC guidance addressing workplace harassment and addresses harassment based on race, color, religion, sex (including pregnancy, childbirth, or related medical conditions; sexual orientation; and gender identity), national origin, disability, genetic information, and age (40 and over). The Guidance clarifies existing law, integrates the Supreme Court’s decision in Bostock v. Clayton County, and addresses emerging issues related to harassment in virtual work environments.

While the Guidance is not legally binding, it outlines best practices for preventing and remedying harassment and includes more than 70 hypothetical examples of potentially unlawful harassment.

Summary of Guidance:

  • Gender identity and sexual orientation. The Guidance reflects the Supreme Court’s decision in Bostock v. Clayton County holding that under Title VII, sex-based employment discrimination includes discrimination based on sexual orientation and gender identity and expression. Examples of harassment on these bases include:

    •  epithets

    • physical assault

    • “outing”

    • harassment based on an individual’s failure to conform to gender stereotypes

    • repeated and intentional use of a name or pronoun inconsistent with the individual’s gender identity (misgendering and “dead naming”)

    • denial of access to a bathroom or other sex-segregated facility consistent with one’s gender identity.

  • Color-based harassment. The Commission noted that color-based harassment related to an individual’s pigmentation, complexion, and skin shade or tone is covered by Title VII.

  • Intersectional harassment. Harassment based on the intersection of two or more protected characteristics is prohibited. For example, an employer may be liable if an employee, a woman over 40, is harassed for being over 40, being a woman, and based on the stereotypes of being an older woman. This harassment is covered as both age and sex discrimination.

  • Intraclass harassment. The Commission reinforced that unlawful harassment can occur regardless of whether the harasser is within the same protected category as the aggrieved employee.

For example, where a 65-year-old salesperson is harassed by their 52-year-old supervisor, who uses terms such as “Pops,” and “old man” to refer to the salesperson, the fact that the supervisor is also older does not allow the inference that the supervisor is not biased toward older workers. Such behavior constitutes harassment based on the salesperson’s age even though the supervisor is also over 40 and also within the ADEA’s protections.

  • Harassment based on national origin. This harassment is based on an individual’s place of origin or ancestry. Harassing conduct may include ethnic epithets, stereotypes about the individual’s place of origin, or harassment regarding traits or characteristics linked to an individual’s national origin (e.g., physical characteristics, ancestry, ethnic or cultural characteristics, and linguistic characteristics).

  • Pregnancy and other medical conditions. Sex-based harassment includes harassment based on pregnancy, childbirth, or related medical conditions such as lactation, using or not using contraception, and deciding whether to have an abortion.

  • Race-based harassment. Harassment based on an individual’s race, traits or characteristics linked to an individual’s race, or stereotypes about an individual’s race. Harassing conduct may include harassment based on traits or characteristics linked to an individual’s race, such as the individual’s name, cultural dress, accent or manner of speech, and physical characteristics, including hair textures, and hairstyles.

  • Age-based harassment. The ADEA prohibits age-based discrimination including unlawful harassment of individuals over the age of 40. This includes harassment based on negative perceptions about older workers, and stereotypes about older workers even if they are not motivated by animus (e.g., pressuring an older employee to transfer to a job that is less technology-focused because of the perception that older workers are not well-equipped to such work or encouraging an older employee to retire).

  • Conduct over video meetings can contribute to a hostile work environment. The Commission emphasized that conduct in a virtual work environment can contribute to a hostile work environment. This conduct can include comments made during a virtual meeting, comments typed into a group chat, or images visible in an employee’s workspace while an employee participates in a video meeting.

Looking forward

Employers should assess whether their existing anti-harassment and anti-discrimination policies and procedures are in accord with the Guidance and should consider whether additional training is necessary for supervisory employees to ensure that they understand their obligations with respect to harassment in the workplace.

Potential challenges

Although the Guidance took immediate effect, it is still susceptible to legal challenges which could stop its implementation. Indeed, on May 13, 2024, attorneys general from several states filed a lawsuit against the EEOC in the Eastern District of Tennessee seeking to block the enforcement of the Guidance as it relates to transgender employees. This action is pending.

For further information contact Margaret H. Paget or Allyson E. Kurker at Kurker Paget LLC.