EEOC Proposes New Guidance on Harassment in the Workplace

The Equal Employment Opportunity Commission (“EEOC”) has published a proposed "Enforcement Guidance on Harassment in the Workplace" for public comment. If finalized, this will mark the first time since 1999 that the EEOC has updated its guidance on workplace harassment. While the EEOC released a proposed guidance on workplace harassment in 2017, it was not finalized because the #MeToo movement on its own highlighted harassment and sexual abuse issues, and pushed a change in society’s response to such allegations both in and outside of the workplace.

According to the EEOC’s press release, the updated proposed guidance includes changes in harassment law following the #MeToo movement, emerging issues in the workplace like virtual or online harassment, and the Supreme Court’s decision in Bostock v. Clayton County. While the issue in Bostock did not involve a claim of harassment, the EEOC states that “the Supreme Court’s reasoning in the decision logically extends to claims of harassment.”

Some of the updates include:

• Social media conduct that occurs in a non-work-related context, but impacts the workplace
• Sex-based harassment regarding sexual orientation and gender identity
• Conduct not directed at the Complainant that contributes to a hostile working environment
• Individuals harmed by unlawful harassment of a third party
• Conduct on employer’s email system contributing to a hostile work environment
• Conduct that occurs in a work-related context outside of the regular place of work

The proposed guidance also explains legal standards, and employer liability applicable to harassment claims, under federal employment laws protecting employees from harassment based on race, color, religion, sex (including sexual orientation, transgender status, and pregnancy), national origin, disability, age and genetic information. Additionally, the proposed guidance contains updated examples including ones regarding the increased use of technology in the workplace and how online content can contribute to a hostile working environment.

What Employers Need to Know

While the guidance is not legally binding, it is frequently cited in harassment cases and provides the foundation for the EEOC to file harassment claims against employers. According to the EEOC, “more than one-third of charges received by the EEOC included an allegation of harassment.” This shows that the EEOC is placing harassment claims as a high priority as they attempt to aggressively address harassment in the workplace.

Employers with questions on the hostile work environments, the newly proposed guidance by the EEOC and harassment in the workplace should reach out to their Dinsmore & Shohl LLP labor attorneys.