EEOC issues final guidance on workplace harassment

On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) published its final guidance on workplace harassment, which took effect immediately. The new guidance supersedes earlier agency policy and enforcement guidance, and addresses areas such as gender identity, virtual work environments, and systemic discrimination. The final guidance largely tracks the proposed guidance issued in October 2023, with some additions (including more hypothetical examples) and clarifications.

The EEOC also issued additional educational resources, including a “Summary of Key Provisions” document, questions and answers for employees, and a fact sheet for small businesses.

While the new guidance does not have the force of law, it provides a roadmap for how the EEOC will investigate harassment complaints and enforce Title VII. Accordingly, employers are encouraged to review their policies, procedures, and training based on the final guidance, while monitoring legal challenges.

Notable new guidance for certain protected classes under Title VII

Race

The guidance makes clear that not only does Title VII prohibit overt discrimination based on epithets or similar conduct, but it also prohibits harassment based on stereotypes or “traits or characteristics linked to an individual’s race,” such as “name, cultural dress, accent or manner of speech.” This also extends to harassment based on physical characteristics, including appearance standards such as “harassment based on hair textures or hairstyles commonly associated with specific racial groups.”

Color

The guidance clarifies that while sometimes related to harassment based on race or national origin, color-based harassment due to an individual’s pigmentation, complexion, or skin shade or tone is independently covered by Title VII. The guidance provides, as an example, a supervisor harassing “Black employees with darker complexions” but not those “with lighter skin tones.”

Pregnancy, childbirth, and related medical conditions

The final guidance affirms the EEOC’s view that sex-based harassment includes harassment based on pregnancy, childbirth, and related medical conditions, including lactation. It can also include harassment based on a woman’s reproductive decisions, such as decisions about contraception or abortion.

Sexual orientation and gender identity

Citing to the Supreme Court’s 2020 decision in Bostock v. Clayton County (affirming Title VII protections for employees based on sexual orientation), the final guidance provides protection against sex-based harassment, including harassment based on “sexual orientation and gender identity.” According to the EEOC, examples include harassment based on a person’s divergence from societal gender stereotypes; outing (disclosure of an individual's sexual orientation or gender identity without permission); “repeated and intentional” misgendering, such as through the deliberate misuse an employee’s preferred pronouns; and denial of access to a sex-segregated bathroom or facility consistent with the individual’s gender.

The protections based on gender identity and sexual orientation reflect the most significant expansion in the EEOC’s interpretation of Title VII, and are expected to meet the most resistance, with litigation to block the EEOC from enforcing these provisions already pending.

Genetic information

The new guidance clarifies that the Genetic Information Nondiscrimination Act (GINA) prohibits unlawful harassment based on an individual’s or an individual’s family member’s genetic test or family medical history. As examples, the EEOC notes that harassment based on genetic information could include harassing an employee because they carry the BRCA gene, or because the employee’s mother recently experienced a severe case of norovirus, which resulted in overnight hospitalization.

Retaliation

The final guidance addresses the concept of “retaliatory harassment,” noting that such harassment can be challenged even if it is not sufficiently severe or pervasive to alter the terms and conditions of employment by creating a hostile work environment. According to the EEOC, equal employment opportunity laws’ antiretaliation provisions protect against a broader range of behaviors – “they forbid anything that might deter a reasonable person from engaging in protected activity.”

Cross-bases issues

The final guidance clarifies intraclass and intersectional harassment, both of which are actionable under Title VII. Intraclass harassment occurs when one employee harasses another based on a protected characteristic, even though both employees are in the protected class. For instance, the guidance provides the example of a Black manager using a racial epithet to describe other Black employees.

Intersectional harassment occurs when an employee is harassed for two intersecting protected characteristics – an example given is when a 51-year-old female worker is told by a supervisor she is having a “menopausal moment.” Such a remark is simultaneously targeting the female employee’s status as a female and as a person over the age of 40.

Perceived protected class

The EEOC guidance affirms that actionable harassment may occur based upon the perception that an employee is a member of a protected class, even if the employee is not actually a member of that class. For instance, the EEOC proffers as examples “harassment of a Hispanic person because the harasser believes the individual is Pakistani in national origin” and “harassment of a Sikh man wearing a turban because the harasser thinks he is Muslim.”

Associational discrimination

The final guidance makes clear that “associational discrimination” is also covered by Title VII. Associational discrimination may arise from harassment of an individual because they associate with someone in a different protected class, or because they associate with someone in the same protected class. One example would be harassing a “White employee because his spouse is Black.” Notably, the EEOC makes clear that harassment does not require a close relationship, such as a family member, to give rise to a claim, but rather any association could suffice.

Digital and virtual technology

The final guidance confirms that the definition of work environment includes the virtual workspace (eg, email, instant messaging, video calls) and describes how out-of-work electronic communications may contribute to a hostile work environment. Importantly, the final guidance clarifies that such out-of-work conduct must target the employer or its employees; social media postings on their own, without targeting the employer or employees, would not contribute to a hostile work environment.

Employer internal procedures

The proposed guidance detailed the “minimum” features necessary for an anti-harassment policy, complaint process, and training to be effective. While the final guidance avoids using the term “minimum,” it otherwise remains consistent with the proposed guidance. Employers ultimately are required to take reasonable care to prevent and correct harassment. Key steps to demonstrating reasonable care include having a broadly disseminated policy, establishing an effective complaint process, providing regular training to ensure employees and supervisors and managers understand their rights and responsibilities, and monitoring the workplace to ensure adherence to the employer’s policy.

Interplay between statutory harassment prohibitions and other rights

The EEOC noted that many comments addressed free speech and religion-based rights issues, and it acknowledged that the application of the EEOC statutes may implicate other rights or requirements, including those under the US Constitution and other federal laws (eg, Religious Freedom Restoration Act). The EEOC noted that it will carefully consider the facts presented in charges and the interaction of Title VII and the rights to free speech and exercise of religion. It also committed to enhance its administrative procedures and webpages to assist employers with potential defenses, including religious defenses.

If you have questions about the EEOC’s new guidance or discrimination or harassment issues, please reach out to the authors or your DLA Piper contact.