Workplace harassment continues to loom large in the employment law space.

In FY2018 through FY2022, Equal Employment Opportunity Commission (EEOC) statistics show that more than one-third of charges filed with the agency alleged unlawful harassment.

The EEOC’s latest guidance document regarding unlawful harassment was published in 1999.¹Since that time, the practical and legal landscape has evolved dramatically: the #MeToo Movement brought awareness to sexual harassment and sexual violence, the Supreme Court’s decision in Bostock² clarified that sex discrimination under Title VII includes sexual orientation and gender identity, the global COVID-19 pandemic introduced the feasibility of remote work to the majority of the U.S. population, and changes to abortion rights took center stage after the release of the Dobbs decision.³

In response to these notable legal and societal changes, the EEOC recently released a new Proposed Enforcement Guidance on Harassment in the Workplace4 and solicited public comment through Nov. 1, 2023.

If this new guidance is finalized, it will supersede the 1999 guidance document and four prior guidance documents.⁵

While the guidance does not carry the weight of statutes or regulations, it is a useful resource for employers and provides perspective on how the EEOC interprets and applies anti-harassment principles.

Here are the key takeaways from the proposed guidance:

Virtual Working Environments

The COVID-19 pandemic introduced remote work to many employers and employees who had previously worked only on-site, and many workplaces have continued to allow remote or hybrid work models for certain roles.

Remote work environments rely heavily on alternatives to in-person communication, including emails, instant messaging software, videoconferencing, social media, and cell phones.

According to the EEOC, “[g]iven the proliferation of digital technology, it is increasingly likely that the non-consensual distribution of real or computer-generated intimate images using social media can contribute to a hostile work environment, if it impacts the workplace.”⁶

In other words, if conduct occurs in a non-work-related context (like a personal social media page), but the conduct has consequences in the workplace and the employer is put on notice, the employer may be liable if they fail to take remedial action.

Sex-Based Harassment

The Bostock decision held that sex discrimination under Title VII includes discrimination based on sexual orientation or gender identity. The EEOC’s proposed guidance states that sex-based harassment includes harassment based on sexual orientation and gender identity, including:

• misgendering a transgender employee through “intentional, repeated use of a name or pronoun inconsistent with the individual’s gender identity;” or
• “the denial of access to a bathroom or other sex-segregated facility that is consistent with the individual’s gender identity.”⁷

Abortion and reproductive rights have increasingly been areas of national conversation since the release of the Dobbs decision in June 2022. The EEOC’s proposed guidance addresses these areas by stating that sex-based harassment includes harassment based on pregnancy, childbirth, lactation, or reproductive decisions such as abortion or the use of contraception.

This is consistent with the EEOC’s long-held stance that terminating a pregnancy constitutes a pregnancy-related condition protected under the law.

The EEOC also addresses the balance between an employer’s duty to protect employees from religiously motivated harassment and an employer’s duty to accommodate an employee’s sincerely held religious belief or practice in the absence of an undue hardship. “Employers are not required to accommodate religious expression that creates, or reasonably threatens to create, a hostile work environment.”⁸

Clarification: What Constitutes a Prima Facie Case for Hostile Work Environment

To legally establish a hostile work environment, a complainant must show the conduct is unwelcome, based on protected characteristic, and severe or pervasive enough that a reasonable person would consider the work environment intimidating, hostile, or abusive.

In Harris v. Forklift Systems, Inc.,⁹ the Supreme Court explained that offensive conduct must be both subjectively and objectively hostile. The subjective prong requires that complainant themselves found the conduct abusive, and the objective prong requires that a reasonable person would find the conduct abusive.

The EEOC’s proposed guidance clarifies two points in this analysis:

First, the EEOC takes the position that “demonstrating unwelcomeness is logically a part of demonstrating subjective hostility.”¹⁰ In the EEOC’s view, analyzing “unwelcomeness” as a separate element from the “subjectively hostile” element in a plaintiff’s prima facie case is a redundant and unnecessary step.

Second, the EEOC clarified that, in relation to the “objectively hostile” element, the “reasonable person” should be a reasonable person of the complainant’s protected class that has an “appropriate sensitivity to social context.”

For example, if an undocumented worker is targeted for harassment, the heightened risk of deportation may contribute to both the subjective and objective hostility of the conduct.

Systemic Harassment

When multiple employees from the same protected class complain of a similar form of discrimination, evidence may establish that tolerating harassment or discrimination was the employer’s “standard operating procedure,” referred to as a “pattern or practice” case.

The EEOC’s proposed guidance states that, to avoid liability in a “pattern or practice” case, the employer must adopt a systemic remedy, rather than only addressing the individual harassment claims. If there have been frequent individual incidents of harassment, the employer should take steps to determine whether the conduct is evidence of a broader issue that requires a systemic response.

Guidance for Employer Policies, Complaint Process, and Employee Training

The EEOC’s proposed guidance outlines the minimum features that an anti-harassment policy should have to be effective – that the policy:

• defines what conduct is prohibited;
• is widely disseminated;
• is comprehensible to workers (including those that an employer has reason to believe might have a barrier to understanding, either through limited literacy skills or limited understanding of English);
• requires supervisors to report harassment when they become aware of it;
• offers multiple avenues for reporting harassment (so that an employee can bypass their supervisor or their harasser and contact someone else to report the conduct);
• clearly identifies accessible points of contact to whom reports should be made and contains contact information; and
• explains the complaint process, including anti-retaliation and confidentiality protections.

For an employer’s complaint process to be effective, it should contain the following minimum features:

• prompt and effective investigations and corrective action;
• adequate confidentiality protections; and
• adequate anti-retaliation protections.

For an employer’s harassment training to be effective, it should at a minimum:

• explain the anti-harassment policy and complaint process, including the confidentiality and anti-retaliation protections;
• provide examples of prohibited harassment, and conduct that may rise to the level of harassment if not addressed;
• provide information about employees’ rights if they observe or experience harassment;
• provide supervisors and managers with information to help them identify, report and correct harassing behavior, including clear direction on how to report a concern;
• be tailored to the workplace and workforce;
• be provided to all employees on a regular basis; and
• be in a style and format that is clear and easy for the workforce to understand.

Conclusion: A Roadmap

While it remains unclear when a final guidance document will be issued and whether the proposed guidance document will be revised based on input received during the public comment period, the EEOC’s proposed guidance provides a roadmap for employers to begin reviewing their anti-harassment policies, complaint procedure, and approach to employee training, to ensure that these elements are implemented effectively in their workplace.

This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section webpages to learn more about the benefits of section membership.

Endnotes

¹ Enforcement Guidance on Vicarious Liability for Unlawful Harassment by Supervisors.

² Bostock v. Clayton County, 590 U.S. ___, 140 S. Ct. 1731, 207 L.Ed. 2d 218 (2020).

³ Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___, 142 S. Ct. 2228, 213 L.Ed. 2d 545 (2022).

⁴ Proposed Enforcement Guidance on Harassment in the Workplace.

⁵ The other four guidance documents that would be superseded by this new guidance are: Compliance Manual Section 615: Harassment (1987); Policy Guidance on Current Issues of Sexual Harassment (1990); Policy Guidance on Employer Liability under Title VII for Sexual Favoritism (1990); and Enforcement Guidance on Harris v. Forklift Sys., Inc. (1994).

⁶ Enforcement Guidance, supra note 4.

⁷ Id.

⁸ Id.

⁹ Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993).

¹⁰ Enforcement Guidance, supra note 4.