Long-Awaited Workplace Harassment Guidance Proposed by the EEOC

The Equal Employment Opportunity Commission (EEOC) unveiled their proposed “Enforcement Guidance on Harassment in the Workplace” in the federal register on October 2, 2023. This eagerly anticipated update comes after the initial release for public comment in 2017 was never finalized. While employers await the final approved guidance, they are advised to adhere to the current guidance issued on May 1, 1987.

Reflecting the changes in the law that have emerged since the #MeToo movement gained momentum, the updated guidance takes into account the 2020 Supreme Court decision in Bostock v. Clayton County, as well as addressing other forms of harassment such as virtual or online harassment. In November 2017, the EEOC published a technical assistance document titled “Promising Practices for Preventing Harassment,” which drew from the 2016 report by the Select Task Force on the Study of Harassment in the Workplace.

The proposed guidance not only outlines the legal standards and employer liability pertaining to harassment claims but also emphasizes that harassment can be based on factors beyond sex, race, or national origin. These factors include color, religion, disability, genetic information, and age. Additionally, the guidance provides detailed examples of sex-based harassment encompassing areas such as pregnancy, childbirth, related medical conditions, reproductive decisions, sexual orientation, gender identity or expression, and “associational discrimination.” The EEOC defines “associational discrimination” as harassment that may occur when a complainant associates with someone in the same protected class.

In addition to these provisions, the EEOC:

• Offers examples of causation establishing that if the evidence demonstrates the complainant experienced harassment due to their protected characteristic, even without explicit references from the harasser, causation can still be established.
• Provides key questions that commonly arise when evaluating claims of a hostile work environment.
• Addresses the concepts of “severity” and “pervasiveness” by providing illustrative scenarios.
• Presents the types of single incidents that would meet the parameters defining a hostile work environment, even if they are based on a single incident.

Comments on the proposed guidance can be submitted online until November 1, 2023. To identify the proposed rules, refer to docket number EEOC-2023-0005 or Regulatory Information Number (RIN) 346-ZA02.

It is worth noting that if the proposed guidance is ultimately approved, it will serve as valuable guidance rather than carrying the legal force and effect of law. Notably, the federal district court in Texas took action last year by issuing a nationwide injunction to invalidate the regulatory documents issued by the EEOC on this matter on June 15, 2021. The court's reasoning behind this injunction was that the guidance documents delved into policy issues that extended beyond those raised in the Bostock decision and introduced new considerations not addressed in the Bostock court decision.