EEOC Revises Workplace Harassment Guidance
The U.S. Equal Employment Opportunity Commission (EEOC) has long been at the forefront of protecting employees from unlawful harassment in the workplace. In a landmark move, the agency has recently published its updated Enforcement Guidance on Harassment in the Workplace, marking the first comprehensive revision of its harassment guidance since 1999.
This comprehensive update reflects the evolving legal landscape, the findings and recommendations of the EEOC’s bipartisan Select Task Force on Harassment in the Workplace, and the emergence of new challenges posed by virtual work environments and digital technology.
Expanded Definitions of Covered Bases
The EEOC’s updated guidance takes a significant step forward in broadening the definitions of the protected characteristics covered under federal employment discrimination laws. While the core bases of race, color, national origin, religion, sex, disability, age (40 and older), and genetic information remain, the guidance expands the scope of protection in several key areas.
Protecting Against Stereotyping
The guidance emphasizes that harassment based on stereotypes associated with a protected characteristic can be actionable, even if the harassment is not directly targeted at the complainant. For example, pressuring an older employee to transfer to a less technology-focused position due to the stereotype that older workers are less tech-savvy would be considered unlawful harassment.
Expanding Sex-Based Harassment
The definition of sex-based harassment has been significantly expanded to include harassment related to pregnancy, childbirth, and other related medical conditions. This protection extends to harassment based on an individual’s reproductive decisions, such as decisions about abortion. The guidance further broadens sex-based harassment to encompass harassment based on sexual orientation and gender identity, including the intentional and repeated use of a name or pronoun inconsistent with an individual’s gender identity (known as “misgendering”) and the denial of access to a bathroom consistent with the individual’s gender identity.
Addressing Indirect Harassment
The EEOC’s updated guidance also recognizes that harassment need not be directed at the complainant to contribute to a hostile work environment. Harassment based on a protected characteristic, even if not directed at the complainant, may be actionable if it creates a pervasive and abusive work environment.
The Impact of Virtual Work Environments
The guidance acknowledges the significant impact that technological advancements and the rise of virtual work environments have had on workplace harassment. Harassment can now occur not only in physical workspaces but also through various digital channels, such as an employer’s email system, electronic bulletin boards, instant messaging platforms, videoconferencing tools, intranets, and official social media accounts.
Blurring the Lines between Work and Personal Life
The guidance further recognizes that the nature of virtual harassment can blur the lines between an employee’s work and personal life. Conduct that occurs in a non-work-related context, such as an employee’s personal social media page, can contribute to a hostile work environment if the employee learns about it directly or if it is discussed by coworkers in the workplace.
Comprehensive Employer Guidance
The EEOC’s updated guidance provides employers with comprehensive guidance on developing and implementing effective anti-harassment policies and procedures. At a minimum, the agency recommends that an employer’s anti-harassment policy should:
- Clearly define prohibited conduct and be widely disseminated
- Be comprehensible to all workers, including those with potential language or literacy barriers
- Require supervisors to report harassment when they become aware of it
- Offer multiple avenues for reporting harassment
- Clearly identify accessible points of contact for reporting harassment, including contact information
- Explain the employer’s complaint process, including anti-retaliation and confidentiality protections
Thorough but Reasonable Investigations
The guidance emphasizes that an employer’s investigation into harassment allegations need not be a trial-like proceeding but should be sufficiently thorough to arrive at a reasonably fair estimate of the truth. The investigation should be conducted by an impartial, well-trained party who seeks information from all involved parties.
Balancing Interests During Investigations
Employers must also carefully balance the interests of all parties during the investigation process. In some cases, it may be necessary to take intermediate steps, such as scheduling changes to avoid contact between the parties or placing the alleged harasser on paid, non-disciplinary leave. However, every reasonable effort should be made to minimize the burden or negative consequences to the complainant pending the investigation.
Determining Appropriate Corrective Action
The guidance provides employers with clear guidance on evaluating the reasonableness of any corrective action taken in response to substantiated harassment. Factors to consider include the proportionality of the corrective action, the nature and degree of the harasser’s authority, the effect on the complainant, the options available to the employer, the extent to which the harassment was substantiated, and whether the harassment has stopped.
Addressing Systemic Issues
Importantly, the EEOC emphasizes that if there is a pattern or practice of harassment in the workplace, a systemic remedy may be required rather than simply addressing harassment on an individual level. Employers must be vigilant in identifying and addressing any underlying systemic issues that may be contributing to a hostile work environment.
Navigating the Intersection of Harassment and Free Speech
The EEOC’s updated guidance acknowledges the potential tension between workplace harassment law and the rights to free speech and free exercise of religion. The agency emphasizes that it carefully analyzes the interaction of these competing interests when presented with the specific facts of an individual harassment case.
Balancing Competing Interests
The EEOC recognizes that certain speech or conduct, even if offensive or controversial, may be protected by the First Amendment or religious liberty laws. However, the agency also stresses that these rights are not absolute and must be balanced against the need to maintain a harassment-free work environment. Employers should consult with legal counsel to ensure that their policies and practices strike the appropriate balance.
Enforcement Priorities and Resources
The EEOC has made it clear that workplace harassment remains a top enforcement priority. Between fiscal years 2016 and 2023, more than a third of all discrimination charges received by the agency included an allegation of harassment based on race, sex, disability, or another protected characteristic. Additionally, since fiscal year 2018, harassment has been alleged in over half of federal sector equal employment opportunity complaints.
Comprehensive Guidance and Resources
To assist employers and employees in navigating the complexities of workplace harassment, the EEOC has provided a wealth of educational resources, including a “Summary of Key Provisions” document, a fact sheet for employees, and a fact sheet for small businesses. The agency has also highlighted its previous guidance, such as the 2023 Promising Practices for Preventing Harassment in the Federal Sector and the 2017 Promising Practices for Preventing Harassment, which offer practical tips for addressing harassment in the workplace.
Empowering Employees and Employers
The EEOC’s updated guidance on harassment in the workplace serves as a comprehensive and authoritative resource for both employees and employers. By clarifying the legal standards, expanding the definitions of protected characteristics, and addressing emerging issues, the guidance empowers individuals to recognize and report unlawful harassment, while also equipping employers with the knowledge and tools to create respectful and inclusive work environments.
Promoting Workplace Equity and Justice
Ultimately, the EEOC’s updated harassment guidance reflects the agency’s steadfast commitment to promoting workplace equity, diversity, and justice. By providing clear and comprehensive guidance, the EEOC aims to ensure that all employees feel safe, respected, and empowered to thrive in their chosen professions, free from the harmful effects of harassment.
Conclusion
The EEOC’s release of its updated Enforcement Guidance on Harassment in the Workplace marks a significant milestone in the agency’s ongoing efforts to combat unlawful harassment and discrimination in the American workplace. By addressing legal developments, emerging issues, and the evolving nature of work, this comprehensive guidance equips both employees and employers with the knowledge and resources necessary to foster safe, inclusive, and respectful work environments. As the nation commemorates the 60th anniversary of the Civil Rights Act of 1964, this guidance serves as a timely and essential tool in the continued fight for workplace equity and justice.
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