New EEOC Harassment Guidance Is Here: What You Need to Know

The EEOC has released new final guidance on workplace harassment, replacing five of its prior guidance documents and ushering in new standards that reflect a watershed 2020 Supreme Court ruling and a heightened focus on online harassment.

The final guidance retains the format of the guidance as it was proposed near the start of October of last year. The agency said it carefully looked at more than 38,000 public comments it received after that time before settling on the final document.

The final guidance focuses on answering these three substantive questions:

• Was the harassment based on a legally protected characteristic under federal law?
• Did the harassment constitute or result in discrimination with respect to a term, condition or privilege of employment?
• Is there a basis for holding the employer liable for the harassment?

Within those three questions, there is a lot to unpack.

First up: EEOC explains what characteristics are protected

Under federal law, legally protected characteristics include race, color, national origin, religion, sex, age, disability and genetic information.

Within the protected categories, discrimination based on sex includes discrimination that is based on pregnancy, childbirth or any related medical condition as well as discrimination that is based on sexual orientation and gender identity.

The latter rule derives from the ruling in Bostock v. Clayton County, in which the Supreme Court ruled that sex discrimination under Title VII includes discrimination based on sexual orientation or gender identity.

Harassment based on pregnancy generally includes harassment relating to abortion and the use of contraception, the final guidance says.

To violate the law, harassment must be based on one of these protected characteristics, the EEOC explained. Mistreatment that is unrelated to a protected characteristic is not protected by the law.

The guidance gives the example of an employee who was rude and hostile toward a co-worker after the co-worker benched the employee in a work-related basketball game. The co-worker claimed that the mistreatment was based on his national origin and color, but an investigation showed the employee was just upset about being benched. In this example, the causation requirement is not met, the guidance explains.

Second: Let’s talk terms, conditions and privileges of employment

To violate the law, harassment must negatively affect a term, condition or privilege of employment, the EEOC guidance says.

Sometimes, it is obvious that harassment has affected a term, condition or privilege of employment, such as when an employee is denied a promotion because they reject a supervisor’s sexual advances.

Terms or conditions of employment are also affected in a negative way when an employee is subjected to a hostile work environment. For this to happen, the offensive conduct must be hostile from both a subjective and an objective standpoint. It must also be severe or pervasive enough to create a hostile work environment.

Sometimes, a single incident is enough to create a hostile environment – such as in cases involving sexual assault or other physical violence. More commonly, though, it is a series of acts or continuing behavior that create a hostile job environment.

It’s important to note that offensive conduct can create a hostile environment for an employee even if the conduct is not directed squarely at them, the EEOC notes.

The guidance gives the example of a Black sales manager who hears a white district manager use the N-word in conversations with the sales manager’s subordinates. This language can create a hostile environment for the sales manager even though it was not directed at him.

Another important note from the EEOC guidance: An employee who is forced by a superior to participate in the harassment of a co-worker is thereby subjected to an illegally hostile work environment.

Employee use of social media – even outside of work – can be taken into account when considering whether a hostile job environment has been created, the guidance asserts.

Third: Liability

When harassment is based on a protected characteristic and produces a clear negative change to a term, condition or privilege of employment, the employer is liable for it.

In hostile work environment cases, liability standards vary depending on factors including most importantly the position of the harasser in the employer’s hierarchy.

The EEOC guidance is careful to note that it lacks the force of law and says it is “not meant to bind the public in any way.” But in practical terms, employers who ignore it are more likely to face EEOC enforcement actions and lawsuits.

What’s next: Is a challenge on the horizon?

The final guidance is likely to face pushback. In November of 2023, 20 state attorneys general sent a letter to the EEOC to say that portions of the proposed guidance “would unleash unconstitutional chaos in the nation’s workplace.”

The letter particularly objected to guidance indicating that illegal harassment includes:

• using pronouns that are inconsistent with an employee’s gender identity, and
• banning employees from using bathrooms that are consistent with their gender identity.

The final document retains those provisions, and a courtroom clash between religious/free speech rights and preventing harassment as defined by the guidance is likely.

The guidance in fact implicitly acknowledges the looming showdown, noting that many commenters expressed similar concerns while adding that the agency “fully recognizes the importance of protecting free speech” and “will carefully consider these issues as presented on a case-by-case basis.”