The EEOC Releases Proposed Updated Guidance on Actionable Harassment in the Modern Workplace
Ashley Graves, Associate
On September 29, 2023, the Equal Employment Opportunity Commission released its revised “Proposed Enforcement Guidance on Harassment in the Workplace”[1] (“Guidance”), which was published in the Federal Register on October 2, 2023. This Guidance is the EEOC’s first update to its workplace harassment policies since 1999. As such, this Guidance responds to the changing workplace landscape in light of the #MeToo Movement and the Supreme Court’s decision in Bostock v. Clayton County[2] in particular.
Updated Covered Bases for Harassment
The proposed Guidance expands upon previously recognized protected classes and traits to describe additional characteristics which may form the bases of harassment claims under applicable federal statutes, and now includes:
· harassment based on pregnancy, childbirth, or related medical conditions, including lactation;
· harassment concerning a woman’s reproductive decisions about contraception or abortion;
· harassment based on sexual orientation and gender identity, including how that identity is expressed, harassment may also be found if an employee is intentionally and repeatedly misgendered, or denied access to bathrooms consistent with the employee’s gender identity;
· harassment because an employee associates with someone in a different or same protected class (i.e., associational harassment);
· harassment based on the intersection of two or more protected characteristics (i.e., intersectional harassment); and
· harassment based on cultural expectations concerning how a member of a protected group usually act, appear, or behave.
Harassment claims are still evaluated under a totality of the circumstances analysis, which encompasses facially discriminatory conduct, stereotyping, and the context in which the comments or behavior occurs. Facially neutral conduct may be discriminatory if linked with facially discriminatory conduct. For example, an employee who is a devout Christian who is excluded from office parties may argue that his exclusion is discriminatory if he also experienced facially discriminatory conduct, like being teased for his or her religious beliefs. Additionally, the shortness in time between the harasser’s knowledge of an individual’s protected characteristic and the harassing conduct may suggest that the harassment is discriminatory.[3]
Expanded Circumstances Which May Give Rise to Hostile Work Environment Claims
Consistent with the EEOC’s Strategic Enforcement Plan’s[4] goals of “preventing and remedying systemic harassment,” the Guidance clarifies that there is no longer a “crude environment” exception to Title VII’s prohibitions, and adds that “prevailing workplace culture does not excuse discriminatory conduct.” In other words, the fact that a particular workplace may historically have been characterized by vulgar or discriminatory language or conduct does not act to mitigate any statutory prohibitions against severe or pervasive harassment.
Moreover, complainants may satisfy the objective component of the severe or pervasive standard if the harasser has notice that the harassing conduct was unwelcome.[5] Importantly, harassing conduct may affect an employee’s work environment, even when such conduct is not directed at that employee. The EEOC adds that when offensive conduct is directed towards a different employee apart from the complainant, and the third-party employee and complainant share the same protected class(es), such indirect harassment may be used to establish a hostile work environment. Such conduct does not even have to occur in the complainant’s presence; it is sufficient if the complainant is made aware of the harassing conduct. The EEOC’s proposed Guidance would also permit individuals to bring a charge alleging that they have been harmed by the unlawful harassment of a third party who is not in their protected group or class.
Hostile work environment claims may also encompass conduct that occurs in a work-related context outside of the regular workplace, and encompass conduct conveyed using work-related communication systems, accounts, or platforms, which accounts for the increasing prevalence of videoconferencing (such as with Zoom or Teams) and virtual work environments, generally. The EEOC likewise advises that employers may be held responsible for conduct occurring in a non-work-related context that “has consequences in the workplace.”
Employer Considerations
Consistent with recent trends concerning workplace harassment and discrimination, this Guidance broadens protections for workers by expanding both the conduct which may be actionable and the settings in which harassing conduct may occur. As such, employers should be mindful of complaints of harassment occurring not only in virtual work-related spaces, but also outside the workplace that may nonetheless impact the work environment. Importantly, the Guidance does not address state laws, like Colorado’s POWR Act[6] for example, that may go even further to change and alter the harassment landscape.
[1]https://www.eeoc.gov/proposed-enforcement-guidance-harassment-workplace
[2]590 U.S. ---- , 140 S. Ct. 1731 (2020) (holding that an employer violates Title VII by discriminating against an employee for being homosexual or transgender).
[3]The EEOC does not define what that time period may be, and instead cites to a case in which the harassment began “almost immediately” after the harasser learned of the employee’s protected trait. See, e.g., Flowers v. S. Reg’l Physician Servs., Inc., 247 F.3d 229, 236-37 (5th Cir. 2001)
[4]https://www.eeoc.gov/strategic-enforcement-plan-fiscal-years-2024-2028; https://www.rockymountainemployersblog.com/blog/2023/9/28/eeoc-releases-its-strategic-enforcement-plan-for-fiscal-years-2024-2028
[5]This Guidance only relates to federal law. As a reminder for Colorado employers, the newly enacted POWR Act no longer requires that the severe or pervasive standard for harassment be satisfied. See https://www.rockymountainemployersblog.com/blog/2023/8/17/non-disclosure-provisions-in-employment-agreements-new-requirements-and-pitfalls-for-colorado-employers-under-the-powr-act
[6]https://leg.colorado.gov/sites/default/files/2023a_172_signed.pdf