Written by: Karina Shareen

On September 29, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) proposed its updated workplace harassment guidance to protect workers. This new guidance reflects notable changes in the law, including the Supreme Court’s decision in Bostock v. Clayton County, the #MeToo movement, and emerging issues, such as online harassment. If finalized, the guidance would be the EEOC’s first update on workplace harassment since 1999.

According to the EEOC, despite federal laws prohibiting harassment, it continues to be an issue in U.S. workplaces as more than one third of charges filed with the agency from the beginning of fiscal year (FY) 2018 through FY 2022 included an allegation of unlawful harassment.

The new guidance explains the legal standards and employer liability applicable to harassment claims under the federal employment discrimination laws enforced by the EEOC. More specifically, it provides numerous updated examples to incorporate updates on current case law on workplace harassment, the use of digital technology in the workplace, and how online social media postings can contribute to a hostile workplace.

The EEOC also provides guidance to assist employers in developing anti-harassment policies and procedures by describing the general features of effective anti-harassment policies, processes, training, and implementation. For example, the EEOC’s proposed guidance recommends that employers retain records of all harassment complaints and investigations to help employers identify patterns of harassment that can be used to improve the employer’s harassment prevention measures.

While employers may wish to review the entire proposed guidance, employers can educate themselves on the EEOC’s stance on what employers’ policies and practices related to harassment should contain.

The following are some key provisions in the proposed guidance:

• Recognition that sex-based harassment includes harassment on the basis of sexual orientation and gender identity, including the expression of one’s gender identity.
• Recognition that sex-based harassment includes harassment based on pregnancy, childbirth, or other related medical conditions.
• The allegedly harassing conduct must be evaluated in the context in which it occurs or within a larger social context.
• An individual may establish harassment based on conduct that is not specifically directed at them.
• Employers are not required to accommodate religious expression that creates, or reasonably threatens to create, a hostile work environment.
• Harassment need not result in a decline in an individual’s work performance or any apparent psychological injury, as long as the nature of the conduct and the individual’s reactions to the conduct are sufficient to establish that the ongoing conduct creates a hostile work environment.
• Harassment can occur in the virtual workplace just as it can in the physical workplace.

The proposed guidance, if issued in final, will not have the force and effect of law, but instead assist employers by providing clarity regarding requirements under the law and EEOC policies. Employers should consider reviewing their internal anti-discrimination and harassment policies to identify any gaps based on the proposed guidance. Deutsch Kerrigan attorneys are available to discuss these important matters and help ensure your company is in compliance.