On September 29, 2023, the Equal Employment Opportunity Commission (“EEOC”) released its revised “Proposed Enforcement Guidance on Harassment in the Workplace”. If successful, the proposed guidance would be EEOC’s first update on workplace harassment since the previous update in 1999.
The new proposal considers recent changes in the law on issues of workplace discrimination and harassment, including the U.S. Supreme Court’s decision in Bostock v. Clayton County. The Supreme Court held in Bostock that Title VII of the Civil Rights Act’s prohibition on sex discrimination includes discrimination based on gender orientation and sexual identity. EEOC’s changes also reflect recent social issues, such as the #MeToo movement and digital technology.
EEOC provides a particular legal analysis for determining when conduct constitutes harassment based on a protected characteristic and employer liability for claims of harassment. Within the proposed guidance are several key changes to the current analysis of harassment claims, which include the following:
(1) An employer must have an express recognition that sex-based harassment includes harassment on the basis of sexual orientation and gender identity, including the expression of one’s gender identity.
(2) Allegedly harassing conduct must be evaluated in the context in which it arises. In certain instances, conduct that is not discriminatory on its face may in fact be discriminatory based on the specific context in which it occurs or within a larger.
(3) An individual may establish harassment based on conduct that is not specifically directed at them.
(4) Employers are not required to accommodate religious expression that creates, or reasonably threatens to create, a hostile work environment.
(5) Harassment need not result in a decline in an individual’s work performance or any apparent psychological injury, as long as the nature of the conduct and the individual’s reactions to the conduct are sufficient to establish that the ongoing conduct creates a hostile work environment.
The EEOC has also provided guidance to assist employers to prevent workplace harassment and avoid liability and examples of employer actions weighing against a finding of an effective anti-harassment program including when an employer creates obstacles to filing complaints or implements ineffective complaint mechanisms.
The proposed guidance was published in the Federal Register on October 2, 2023, and is open for public comment until November 1, 2021. Employers should stay abreast of the proposed guidance and EEOC’s final proposal to ensure they are in compliance with current policies to avoid any potential claims of harassment.