This article, written by attorney Michael Lambert, was originally published by New England Biz Law Update and can be found here.
The Equal Employment Opportunity Commission has issued proposed enforcement guidance on harassment in the workplace. If finalized, it would be the EEOC’s first updated guidance since 1999.
The proposed guidance, issued on October 2, 2023, is intended to reflect legal developments as well as specific issues that have arisen in recent years, including social media, remote work, and the U.S. Supreme Court’s decision in Bostock v. Clayton County.
Sex-based harassment
In Bostock, the court held that discrimination on the basis of sexual orientation and gender identity is discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964.
The EEOC’s proposed guidance reflects this expansion of the scope of Title VII to include sexual orientation and gender identity, as well as gender expression. The guidance provides examples of harassment, such as:
- Making derogatory comments or jokes about an employee’s sexual orientation or gender identity
- Intentionally misgendering an employee
- Refusing to use an employee’s preferred pronouns
- Denying an employee access to a bathroom or other sex-segregated facility consistent with their gender identity
The guidance further stipulates that sex-based harassment includes harassment on the basis of pregnancy and childbirth as well as a woman’s reproductive decisions, such as decisions about contraception or abortion.
Social media
The EEOC guidance includes issues of harassment that occur in a non-work-related context, including employees’ personal social media platforms. The guidance states that social media harassment can be considered workplace harassment if it interferes with an employee’s work performance or creates a hostile work environment.
Remote work
The guide also addresses how interactions that take place over video conference calls could constitute harassment. One notable example includes offensive or racist imagery that is visible while the employee participates in a video meeting.
Employer’s duty of reasonable care
The EEOC’s proposed enforcement guidance identifies a number of things that employers can do to show they have exercised “reasonable care” to prevent harassment. Examples include:
- A policy that is comprehensible to workers, including those with limited proficiency in English
- Requiring supervisors to report harassment when they are aware of it
- Multiple avenues for employees to report harassment
- Regular anti-harassment training for employees and managers
- Monitoring for signs of harassment
- Adequate confidentiality protections for the complaint and investigation processes
Next steps
The guidance is not yet final. The draft guidance was published on Oct. 2 and will be open for public comment for 30 days.
The EEOC’s guidance is not legally binding in and of itself. However, the EEOC’s guidance is highly persuasive and is often given deference by the courts. Furthermore, proposed guidance is based on decades of case law, and as such, it is a valuable resource for employers, even before it is finalized