EEOC's New Guidance on Harassment

On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) issued Guidance on workplace harassment for the first time in 25 years. Although this Guidance is not legally binding, it reveals how the EEOC will enforce anti-discriminations laws moving forward.  This update is expansive and reflects the Supreme Court’s inclusion of LGBTQ+ workers in anti-discrimination laws as illustrated in Bostock v. Clayton County.  With this framework, the EEOC explained that repeatedly refusing to use a transgender worker’s preferred pronouns or barring them from using bathrooms that match their gender identity constitutes unlawful workplace harassment.  In addition, the EEOC stated that discriminating against employees based on their decisions to have abortions or use contraception is a form of sex discrimination.  It is unclear the extent to which employers can continue to provide employees with single-sex bathrooms or locker rooms.

The EEOC also touched on how events that occur outside of the workplace can result in unlawful harassment. Examples of such events include exchanges between remote workers in the virtual work environment and employees’ personal posts on social media if these posts affect a fellow employee's working conditions.

In addition, the EEOC Guidance provides updated examples of workplace harassment based on race, religion, pregnancy, and age. Something that the EEOC has not changed, but instead reinforced, is the severe or pervasive standard as it applies to harassment claims.

Of critical importance to employers is the EEOC’s emphasis on regular, interactive harassment training as a requirement to establish the first prong of the employer’s affirmative defense to claims of harassment (i.e., that it took “reasonable steps” to prevent harassment in the workplace).

Finally, in order for employers to establish the second prong of the affirmative defense to harassment claims, the EEOC Guidance reminds employers that they must take prompt and appropriate corrective action to complaints that is “reasonably calculated to prevent further harassment” under the particular circumstances at that time.

For questions regarding the EEOC’s Guidance or any other labor and employment matter, please contact any of the attorneys at Hoffman & Hlavac. To stay updated on key labor and employment law developments that affect your workplace, be sure to subscribe to this blog and follow us on social media!