Updated EEOC harassment guidance addresses new workplace challenges

As any employer can tell you, a lot has changed in the workplace since the Equal Employment Opportunity Commission (EEOC) last issued guidance on workplace harassment in 1999. We’re talking #MeToo, the explosion of social media and digital communications, and, of course, a global pandemic and remote work. It’s in the context of this new employment landscape that the EEOC published notice of Proposed Enforcement Guidance on Harassment in the Workplace on October 2, 2023. The new guidance, which is open for public comment through November 1, 2023, is intended to assist employers as they deal with the significant changes in the workplace and the law since the EEOC’s earlier guidance.

In issuing its new guidance, the EEOC notes that “harassment remains a serious workplace problem” with more than one-third of EEOC charges including an allegation related to some form of harassment. As a result, the EEOC’s new Strategic Enforcement Plan includes two key priorities related to harassment: preventing and remedying systemic harassment and protecting vulnerable workers and people from underserved communities from harassment.

The new EEOC harassment guidance

As expected, the new guidance addresses the legal standards and employer liability applicable to harassment claims under the federal laws enforced by the EEOC. Beyond that, however, the guidance provides insights on current workplace challenges by using real-life examples of workplace situations and commentary on whether the conduct constitutes harassment.

• LGBTQ harassment - On a topic of noted interest to the EEOC, the guidance addresses conduct associated with sexual orientation and gender identity that may be actionable harassment. The guidance recognizes that consistent “misgendering,” meaning refusing to use a name or pronoun consistent with the individual’s gender identity, may constitute harassment. The EEOC also notes that another potential form of sex-based harassment is refusing to allow an employee to use a bathroom that matches their gender identity.
  
  Recognizing the potential conflict in employees’ protected statuses, the guidance notes that a reasonable accommodation of sincerely held religious beliefs would not include allowing an employee to create a hostile work environment for an LGBTQ co-worker.

• Online harassment - Significantly for employers dealing with the employees’ use of digital technology, the guidance addresses how social media postings and other online content can contribute to a hostile work environment. The guidance emphasizes that conduct within a virtual work environment can contribute to a hostile work environment.
  
  While employers seemingly have little control over employees’ private social media accounts, the EEOC advises employers that they may be liable for harassment occurring on such private accounts when the conduct has consequences in the workplace.  In another nod to the modern day workplace, the guidance states 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.

• Process and procedural issues - The guidance also reminds employers that they can limit potential liability by exercising reasonable care to prevent and correct harassment. These steps, which should be well-known to employers, include:

• • Anti-harassment policy. Maintain an effective anti-harassment policy that, among other elements, defines what conduct is prohibited, is widely disseminated, is understandable, and offers multiple avenues for reporting harassment.
  • Complaint process. Ensure an effective complaint process that provides for prompt and effective investigations and corrective action, includes adequate confidentiality protections, and contains adequate anti-retaliation protections.
  • Training. Implement training that is tailored to the workplace and is provided on a regular basis in a clear, easy-to-understand style that explains the employer’s anti-harassment policy and complaint process. In particular, ensure that supervisors and managers receive training on their roles and responsibilities in the process.

Employer takeaways

When finalized, the new guidance will be just that - guidance; meaning it does not have the force of law. Nonetheless, it does provide employers with critical insights into how the EEOC will apply the civil rights laws to numerous difficult and evolving workplace situations. Further, it squarely addresses uncertainties about how emerging issues, such as online harassment, should be handled.  

While the guidance takes on new forms and bases for harassment, the advice to employers remains largely unchanged. Employers must continue to implement effective anti-harassment policies, have a well-publicized, multi-avenue complaint process, and provide all employees with anti-harassment training on a regular basis.

The EEOC’s updated harassment guidance is a strong reminder to employers that it’s time to review and update harassment policies, evaluate complaint procedures, and conduct training to stay ahead of new workplace challenges.

Employers can stay on top of evolving workplace challenges by making the McDonald Hopkins Labor and Employment team their destination for assistance on compliance issues, such as those addressed in the EEOC’s harassment guidance.