Final harassment guidance

On April 29, the EEOC announced publication of final guidance on harassment in the workplace, which updates, consolidates, and replaces five guidance documents issued by the agency between 1987 and 1999. It will serve as a single, unified agency resource on EEOC-enforced workplace harassment law. It also reflects the agency’s consideration of public input received after it was posted for public comment last year. The agency issued the proposed harassment guidance on October 2, 2023, and it garnered approximately 38,000 comments. The comment period closed in November.

Between fiscal years 2016 and 2023, the agency reports, more than one-third of all discrimination charges it received included an allegation of harassment based on race, sex, disability, or another characteristic covered by the laws it enforces. Also, since fiscal year 2018, harassment has been alleged in over half of the federal sector equal employment opportunity complaints. In addition, among the 143 merits lawsuits that the Commission filed in fiscal year 2023, approximately 35 percent of them included an allegation of harassment.

The guidance, which was approved by a majority vote of the Commission, is broken down into several main parts: introduction; covered bases and causation; harassment resulting in discrimination with respect to a term, condition, or privilege of employment; liability; systemic harassment; and selected resources. Examples are provided throughout.

Examples of harassment. The guidance document includes over 70 examples illustrating unlawful harassment, including situations involving older workers, immigrant workers, and survivors of gender-based violence. It also illustrates how employees may be subjected to unlawful harassment not only by coworkers or supervisors, but also by customers, contractors, and other third parties. Additionally, the guidance addresses the growth of virtual work environments and the increasing impact of digital technology and social media on how harassment occurs in the work environment.

Pronouns, misgender, bathrooms. Under the covered bases, under the definition of sex, the EEOC explains that sex-based discrimination under Title VII includes employment discrimination based on sexual orientation or gender identity and, therefore, that sex-based harassment includes that which is based on “sexual orientation or gender identity, including how that identity is expressed.” Harassing conduct includes, among several other listed actions, the “repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering)” and denying access to a bathroom or “other sex-segregated facility consistent with the individual’s gender identity.”

Some of the other examples provided by the guidance are examples of “intraclass harassment,” i.e., where the harasser and complainant are members of the same protected class, as well as “intersectional harassment,” i.e., where it is based on more than one protected characteristic of an employee. The document provides an example of timing as evidence of causation and explains and provides examples of context in considering whether the harassment creates an objectively hostile work environment from the perspective of a reasonable person in the complainant’s position.

Questions and answers. Also published was a summary of key provisions, which takes the form of over two dozen questions and answers. Some of the questions include:

• What are some examples of harassing conduct that is based on legally protected characteristics?
• Can a person be harassed by somebody with the same protected characteristic?
• Does behavior have to be sexual in nature or sexualized to be considered sex-based harassment?
• When does an employer “learn” about potential harassment?
• What should an employer consider when investigating a harassment complaint?
• Can an employer reassign or reschedule an employee who reports harassment in response to the employee’s report?
• What is the liability standard in a hostile work environment case?

There is also a set of questions and answers specifically for employees and a fact sheet for small businesses that also takes the form of questions and answers.

Comments and responses. The EEOC also addressed some of the feedback received after its notice was published in the Federal Register last October, including among those, responses to commenters who contended it had exceeded its statutory authority and that of Bostock v. Clayton County with regard to, among other things, addressing sex-segregated bathrooms. “Because the EEOC is statutorily required to investigate all private sector Title VII charges of discrimination presented to it in the administrative process, and also to decide administrative appeals by federal employees raising Title VII claims,” the agency explained, “the EEOC must sometimes take a position on whether an alleged type of conduct violates Title VII even in the absence of binding Supreme Court precedent.”

It explained that, in the federal sector administrative appeal in Lusardi v. Department of the Army, EEOC Appeal No. 0120133395 (Apr. 1, 2015), involving a transgender employee, the Commission had decided that Title VII requires employers to provide transgender employees access to sex-segregated facilities consistent with their gender identity. It also decided in that case that the repeated and intentional use of pronouns inconsistent with a worker’s gender identity could contribute to a hostile work environment. Even before Bostock, the agency further explained, courts had considered evidence of intentional and repeated misgendering as potentially supportive of a hostile work environment claim.

Free speech and religion-based rights. The agency also addressed comments about required use of pronouns based on gender identity as a free speech and religious accommodation issue, noting that it had addressed some of the “interaction between statutory harassment prohibitions and Title VII religious accommodation requirements with respect to expression in the workplace.” However, it explained that the interplay between free speech protections and statutory harassment prohibitions can be highly fact-specific and must be considered on a case-by-case basis.

In section IV.C.3.b.ii(b)(7) of the guidance, in response to comments received, the EEOC discussed special considerations to be considered when balancing anti-harassment and accommodation obligations with respect to religious expression. Among other things, that provision notes: “To address these dual obligations, an employer should accommodate an employee’s sincerely held religious practice of engaging in religious expression in the workplace, unless doing so would create, or reasonably threatens to create, a hostile work environment.”

Source: Written by Brandi O. Brown, J.D.

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