EEOC’s Final Enforcement Guidance on Workplace Harassment Is Here

On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) issued its final version of the Enforcement Guidance on Workplace Harassment to include developments “answering the call” of the #MeToo movement; the landmark Supreme Court decision in Bostock v. Clayton County, Georgia (which held the protections of Title VII of the Civil Rights Act of 1964 include sexual orientation and gender identity); and the realities of digital technology, social media, and harassment and the remote workplace. Nearly 38,000 comments were submitted before the November 2023 public input deadline. The guidance was approved by a 3-to-2 vote of the EEOC’s commissioners and is effective immediately.

Guidance Provides Many Examples

Broadly speaking, the guidance outlines the myriad ways harassment arises in the workplace, including through in-person or virtual behavior. While the final guidance is very similar to the draft version issued in September 2023, the EEOC included a number of examples of behavior—more than 70—to illustrate unlawful workplace harassment in various scenarios.

Most of the examples illustrate actionable behavior, with a handful showing behavior that may be unpleasant but isn’t unlawful. Reading the summary of key provisions is a good way to digest the content without reading the nearly 200-page guidance.

Of note, workplace harassment—whether verbal, physical, visual, sexual, retaliatory, and/or online—can be triggered by:

• Mimicking a person’s disability;
• Mocking a person’s accent;
• Asking intrusive questions about a person’s sexual orientation, gender identity, gender transition, or intimate body parts;
• Outing or repeatedly misgendering a coworker;
• Denying employees access to a bathroom, a locker room, or another facility that’s consistent with their gender identity;
• Racist imagery being visible in an employee’s remote workspace during a video meeting;
• Making sexual comments during a video meeting about a bed being near the employee in the meeting;
• Ridiculing a male employee who is recovering from a vasectomy with name-calling like “gelding” and “eunuch”;
• Engaging in intersectional harassment (harassment based on the combination of at least two protected characteristics), such as comments made to a woman who is fanning herself that refer to her being menopausal and mocking that status; and
• Engaging in intraclass harassment (misconduct occurring when a harasser targets another because of a shared protected class), such as an older worker making ageist remarks at a colleague roughly the same age or older or a female employee making insensitive comments to another female coworker because she doesn’t want children.

The guidance explains that harassment based on a mistaken assumption of a person’s protected status can be actionable even if the perception is incorrect, such as verbal harassment (name-calling) of a heterosexual man based on the assumption he’s gay. Also, an employer may not defeat a workplace harassment claim simply because the victim continues to perform well despite the harassment, so long as the offensive conduct would otherwise affect a reasonable person in the victim’s situation.

The guidance includes an example of a single incident that doesn’t rise to the level of hostile work environment harassment (a single crude comment made from a male employee to a female employee about her menstrual cycle) and a long list of those that do:

• Sexual assault;
• Sexual touching of an intimate body part;
• Physical violence or the threat of physical violence;
• Display of symbols of violence or hatred (swastika, KKK hood, noose);
• Use of denigrating animal imagery (e.g., monkey);
• A threat to deny job benefits for rejecting sexual advances; and
• A supervisor’s use of the “n word” in the presence of a black subordinate.

Takeaways

Employers are responsible for preventing and promptly addressing harassment in the workplace, including with training protocols for employees and management and effective reporting processes and conducting prompt and thorough investigations into workplace harassment complaints.

Proactive prevention efforts; thorough, unbiased investigations; prompt corrective action; and fostering a workplace culture that promotes respect, dignity, tolerance, and inclusion are necessary tools for harassment-free workplaces and successfully defending against harassment claims.

Randi K. Hyatt is an attorney with Whiteford, Taylor & Preston, L.L.P., in Baltimore, Maryland, and can be reached at rhyatt@whitefordlaw.com.

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