EEOC Releases Expansive “Proposed Enforcement Guidance on Harassment in the Workplace”

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Seizing upon another failed Obama-era initiative, the Equal Employment Opportunity Commission is again trying to issue enforcement guidance on workplace harassment issues, following its first attempt back in 2017. Of concern to employers, this guidance takes an extremely broad approach to the concept of illegal workplace harassment.

Some Background. In 2016, under the Obama administration, the EEOC issued a major report on workplace harassment. Following that report and just days before President Trump took office, the EEOC then proposed Enforcement Guidance setting forth the Commission’s interpretation of harassment law and suggested prevention strategies. The EEOC invited the public to submit comments on the proposed Guidance, and the employer community expressed significant concern about the reach of the proposed Guidance. Unsurprisingly, under the Trump administration, the EEOC never finalized that proposed Guidance. But, as with many other Obama initiatives, the Biden administration has now picked up the ball.

In the interim, there have been several seismic shifts in the law, including the Supreme Court’s Bostock v. Clayton County decision that found discrimination on the basis of sexual orientation and gender identity to fall within the confines of sex discrimination under Title VII.

What Is the Effect of the Guidance? Notably, EEOC guidance does not have the force of law, but it provides insight on how the EEOC will interpret and seek to enforce the federal anti-harassment laws, including Title VII (race, color, religion, sex (including gender identity, sexual orientation, and pregnancy) and national origin), the Age Discrimination in Employment Act (age 40+), the Americans with Disabilities Act, and Genetic Information Nondiscrimination Act. Courts may give deference to the Guidance, or it may reject it altogether. In some cases, it may even block enforcement of EEOC guidance documents, such as the federal court that enjoined enforcement of the EEOC’s Technical Assistance Document on “Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity,” as we discussed in our July 29, 2022 E-Update.

What Does the Proposed Guidance Say? The quite lengthy resource focuses on the three components of a harassment claim: (1) covered bases and causation; (2) discrimination with respect to a term, condition, or privilege of employment; and (3) liability. It further discusses the specific topic of systemic harassment, a particular area of interest for the EEOC, as discussed in its recently released Strategic Enforcement Plan Fiscal Years 2024-2028 (discussed in our September 2023 E-Update). It also provides links to other harassment-related resources, including Promising Practices for Preventing Harassment (discussed in our November 2017 E-Update).

Covered Bases. The proposed Guidance reviews each of the protected characteristics, providing examples of types of harassment based on each. Of particular interest, the Guidance makes the following points beyond the generally-understood principles of harassment:

  • Racial harassment includes harassment based on traits or characteristics linked to race, such as name, cultural dress, accent, and grooming characteristics (like hair textures and hairstyles commonly associated with specific racial groups).
  • National origin harassment includes conduct based on stereotypes, as well as targeting physical characteristics like skin tone, cultural characteristics like attire or diet, and linguistic characteristics like accent or lack of fluency.
  • Religious harassment encompasses coercing employees to engage in religious practices at work.
  • Sexual harassment specifically covers pregnancy, childbirth, and related conditions and, in light of Bostock, sexual orientation and gender identity (SOGI). Examples of such harassment include intentional misgendering or denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity. Notably, this last point was subject to much controversy in the EEOC’s ultimately-enjoined SOGI Technical Assistance Document referenced above.
  • Disability harassment includes harassment based on trait or characteristics linked to a disability, such as how the individual speaks, looks, or moves.
  • Harassment based on perception that an individual has a particular protected characteristic is illegal, even if the perception is incorrect.
  • Harassment based on association with someone of a particular protected class is also illegal – including marriage, family relationships, and close friendships.
  • Intersectional harassment occurs when harassment is based on more than one protected characteristic of the individual (e.g. race and sex).
  • Facially discriminatory comments do not need to be targeted to a specific employee to be harassing.
  • Comments that are not facially discriminatory may still be illegal harassment based on the context (e.g. “boy” or “you people”) or where linked to facially discriminatory conduct.

Harassment as to a Term, Condition or Privilege of Employment. The proposed Guidance reviews the well-established legal standards applicable to whether a hostile work environment exists. Of particular interest, it also makes the following points:

  • A complainant need not show that their work performance was harmed or that they sustained psychological injury in order to prove a hostile work environment.
  • The Guidance lists single incidents that can be sufficiently severe to establish a hostile environment to include: sexual assault, sexual touching of an intimate body part, physical violence or threat of physical violence, the use of a symbol such as a swastika/Klansman’s hood/noose, animal imagery comparing the employee to a monkey or ape, denial of job benefits for rejecting sexual advances, and the use of the n-word by a supervisor.
  • Although sexual favoritism has historically not been sufficient to establish a hostile work environment, the Guidance now asserts that “extensive sexual favoritism” may do so.
  • To establish a hostile work environment, a plaintiff must show that there is unwelcome conduct that is both subjectively and objectively hostile – and the Guidance now states that any conduct that is subjectively and objectively hostile is necessarily unwelcome. However, a number of courts treat unwelcomeness as a separate element, so this approach may be challenged.
  • Whether conduct is objectively hostile “should be made from the perspective of a reasonable person of the complainant’s protected class.” The traditional “reasonable person” standard was not so limited. The Guidance also asserts that “personal or situational characteristics,” like age differential or undocumented worker status, also impacts both the objective and subjective reasonableness assessment – a position that may not be shared by the courts.
  • The Guidance also provides that an employee who is forced to engage in unlawful harassment of another employee may have their own claim under the law, even though they were not personally subjected to unlawful harassment.
  • Conduct in a virtual work environment or through electronic work-related communications systems – including official social media accounts – can create a hostile work environment.
  • Conduct that occurs in a non-work-related context, including through social media, can have a workplace impact that creates a hostile work environment.

Liability. The proposed Guidance reviews the liability standards that apply in harassment cases.

  • While it is well-established that an individual is a supervisor, for purposes of assessing liability of the employer, where they have the authority to take or recommend tangible employment actions, the Guidance also states that a person without such authority may be considered a supervisor if the harassed employee reasonably believes them to have such power, i.e. “apparent authority.”
  • The Guidance lists the features that an effective anti-harassment policy must have at a minimum: definition of prohibited conduct; wide dissemination of the policy; comprehensible to workers, including those with limited literacy skills or English proficiency; requirement for supervisors to report any harassment of which they become aware; multiple avenues for reporting harassment; accessible points of contact for such reports, including contact information; and an explanation of the complaint process, including anti-retaliation and confidentiality protections.
  • The Guidance also lists the features that an effective complaint process must have: prompt and effective investigations and corrective action; adequate confidentiality protections; and adequate anti-retaliation provisions.
  • The Guidance further lists the features that, at a minimum, effective training must have: explanation of the anti-harassment policy and complaint process, any alternative dispute resolution process, and confidentiality and anti-retaliation protections; provides examples of prohibited harassment and what might rise to the level of prohibited harassment; rights of employee if they experience, observe, become aware of or report harassment; provides supervisors and managers with information about how to prevent, identify, stop, report, and correct harassment; be tailored to the workplace and workforce; be provided on a regular basis to all employees; and is clear and easy to understand.
  • An employer has an affirmative defense to hostile work environment harassment where it can show both that it took reasonable steps to prevent and correct harassment, and the employee unreasonably failed to take advantage of those opportunities or take other steps to avoid the harassment. The Guidance provides that, even if the employee did not use the employer’s reporting mechanism to complain of harassment, other actions such as filing a grievance with a union may mean that the employer has been notified of the concern and the affirmative defense cannot be used.
  • The Guidance notes special consideration is required when balancing anti-harassment and religious accommodations, noting that while employers must reasonably accommodate employees’ sincerely held religious beliefs and practices, they must also protect workers against religiously motivated harassment. Employers are not required to accommodate religious expression that creates a hostile work environment.
  • A client company may be the joint employer of a temporary agency employee, and therefore responsible for preventing and correcting harassment of that employee.

Systemic Harassment. As noted above, this is a particular topic of interest for the EEOC. Systemic harassment occurs when multiple individuals are subjected to a similar form of discrimination. It also exists when there is a pattern or practice of discrimination, meaning that the employer’s “standard operating procedure” was to tolerate a hostile work environment. Systemic discrimination requires a systemic remedy.

What Next? The proposed Enforcement Guidance will be published in the Federal Register on October 2, 2023, at which time the public will be invited to submit comments until November 1, 2023 through this link.