On April 29, 2024, the U.S. Equal Employment Opportunity Commission (“EEOC”) published its long-awaited Enforcement Guidance on Harassment in the Workplace (the “Guidance”). The Guidance—the first issued by the EEOC on workplace harassment since 1999—presents the Commission’s legal analysis of the standards applicable to workplace harassment and employer liability under the federal antidiscrimination laws, including by providing over 70 examples of harassment. The Guidance addresses emerging workplace issues such as online and virtual harassment, workplace protections for harassment based on sex, including medical conditions related to pregnancy, sexual orientation and gender identity, as well as the interplay between harassment claims and religion-based rights. The Guidance is effective immediately and supersedes several prior EEOC guidance documents. On May 13, a group of state attorneys general filed a complaint against the EEOC seeking to enjoin the Guidance on the grounds that it impermissibly extends Title VII’s protections against sex-based discrimination.
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Background. The Guidance is the result of a seven-year effort by the EEOC to modernize its prior workplace harassment guidance. The final guidance was approved by the EEOC by a partisan vote of 3-2. The Guidance presents the EEOC’s legal analysis of “standards for harassment and employer liability applicable to claims of harassment under the equal employment opportunity (EEO) statutes enforced by the Commission,” including Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA). The Guidance acknowledges that it does not have the force of law, and “do[es] not obviate the need for the EEOC … to consider the facts of each case and applicable legal principles when exercising their enforcement discretion.” The Guidance is effective immediately, and supersedes the guidance issued by the EEOC from 1987 to 1999.
Characteristics Protected by the EEO Laws. The Guidance first details the Commission’s position as to what qualifies as a characteristic that is protected by the EEO laws, including:
- Sex-Based Harassment under Title VII includes, but is not limited to, harassment based: “on pregnancy, childbirth, or related medication conditions,” which “can include issues such as lactation; using or not using contraception; or deciding to have, or not to have, an abortion.” This type of harassment also “includes harassment based on sexual orientation or gender identity, including how that identity is expressed,” which can include: “epithets regarding sexual orientation or gender identity; physical assault due to sexual orientation or gender identity; outing (disclosure of an individual’s sexual orientation or gender identity without permission); harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex; repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.”
- Age-Based Harassment under the ADEA includes “harassment based on stereotypes about older workers, even if they are not motivated by animus, such as pressuring an older employee to transfer to a job that is less technology-focused because of the perception that older workers are not well-suited to such work or encouraging an older employee to retire.”
- Disability-Based Harassment under the ADA includes “harassment based on stereotypes about individuals with disabilities in general or about an individual’s particular disability”; “harassment based on traits or characteristics linked to an individual’s disability, such as how an individual speaks, looks, or moves”; “harassment because of an individual’s request for, or receipt of, reasonable accommodation,” or “because an individual is regarded as having an impairment even if the individual does not have an actual disability;” and harassment “based on the disability of an individual with whom they are associated,” for example, taking leave to care for a family member with “long COVID that meets the ADA’s definition of disability.”
- Perception-Based Harassment is covered under the EEO laws, and occurs where harassment is “based on the perception that an individual has a particular protected characteristic—for example, the belief that a person has a particular national origin, religion, or sexual orientation,” regardless of whether “the perception is incorrect.”
- Associational Discrimination is covered under the EEO laws, and takes place where “the complainant associates with someone in a different protected class or harassment because the complainant associates with someone in the same protected class.” The Guidance notes that associational harassment “often involves a close relationship, such as with a close relative or friend,” but the “degree of closeness is irrelevant to whether the association is covered.”
- Intraclass Harassment is covered under the EEO laws, and occurs where harassment is “based on the complainant’s protected characteristic” and “the harasser is a member of the same protected class.”
- Intersectional Harassment is covered under the EEO laws, and occurs where harassment is “based on more than one protected characteristic of an employee, either under a single EEO statute, such as Title VII, or under multiple EEO statutes, such as Title VII and the ADEA.” The Guidance provides the example of “a Black woman [being] harassed both because she is Black and because she is a woman, or alternatively, because she is a Black woman.”
Covered Harassment, Including Virtual. The Guidance then addresses the requirement that unlawful harassment affect a “term, condition, or privilege” of employment, and identifies workplace conduct that the Commission believes satisfies this standard. At the outset of this analysis, the Commission states that unlawful harassment covers not only an “explicit change to the terms or conditions of employment” but also the “creation of a hostile work environment,” where the conduct is “both subjectively hostile and objectively hostile.” In addressing this standard, the Commission specifically notes that the federal anti-harassment statutes do not cover conduct that is “merely offensive” and “do not impose a general civility code that covers run-of-the-mill boorish, juvenile, or annoying behavior.”
The Guidance states that harassment can occur in a “virtual work environment” and provides the following examples of “virtual” harassment:
- “[S]exist comments made during a video meeting, ageist or ableist comments typed in a group chat, racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting, or sexual comments made during a video meeting about a bed being near an employee in the video image.” The Guidance specifically notes that “postings on a social media account generally will not, standing alone, contribute to a hostile work environment if they do not target the employer or its employees.”
- The Guidance notes that “it is increasingly likely that the non-consensual distribution of real or computer-generated intimate images” can contribute to a hostile work environment.
- Further, the Guidance highlights that “harassment by a supervisor that occurs outside the workplace is more likely to contribute to a hostile work environment than similar conduct by coworkers.”
Balancing of Religion-Based Rights. The Guidance acknowledges that the application of the EEO laws may in some cases implicate other statutory and Constitutional rights, including an employer’s duty to provide a religious accommodation for sincerely held religious beliefs, and noted that many comments that the Commission received with respect to religious expression were with regard to the use of pronouns. The Commission stated that the interplay of these laws and rights “can be highly fact-specific,” and will be considered on a case-by-case basis. In the Guidance, the Commission did not cite the Seventh Circuit decision in Kluge v. Brownsburg, a case involving a “Title VII religious accommodation claim related to pronoun and first-name use,” as the decision was recently vacated and remanded following the U.S. Supreme Court decision in Groff v. DeJoy wherein the Supreme Court found that religious accommodations must impose “substantial increased costs” to constitute an undue hardship for an employer under Title VII. The Commission stated “[o]nce the courts have completed adjudication” of Kluge, the Commission “will give the final decision appropriate consideration.” In the interim, the Commission is enhancing its administrative procedures and webpages to identify how employers can raise defenses, including religious defenses, in response to a charge. The EEOC also stated that employers are not obligated to accommodate religious expression to the extent it creates a hostile work environment and should take corrective action when necessary.
State of Tennessee et al. v. Equal Employment Opportunity Commission et al. On May 13, 2024, a group of state attorneys general filed a complaint in the Eastern District of Tennessee against the EEOC challenging the Guidance and seeking injunctive and declaratory relief. The complaint alleges that the Guidance seeks to “extend Title VII’s protections against sex-based discrimination to new contexts related to ‘gender identity,’” and is an “exemplar of recent federal agency efforts to enshrine sweeping gender-identity mandates without congressional consent.”
Takeaways. Notwithstanding the challenge brought by the state attorneys general, employers should be mindful that the Guidance still represents the EEOC’s views on actionable instances of harassment, and will inform EEOC actions, including with respect to investigative and enforcement decision-making.