On September 29, 2023, the Equal Employment Opportunity Commission (EEOC) released its revised Proposed Enforcement Guidance on Harassment in the Workplace. If issued in final form, the guidance will be the EEOC’s first update on harassment in the workplace since 1999. While this guidance is not considered to be “law,” it’s intended as a resource for EEOC staff investigating, adjudicating, or litigating harassment claims. However, it provides some guidance to employers as they navigate potential harassment issues in the workplace.
The EEOC first released its proposed guidance on workplace harassment for public comment in 2017, however it was not considered ‘finalized’. This most recent updated proposed guidance reflects notable changes in the law, including discrimination based on gender orientation and sexual identity and recent social justice developments such as the #MeToo movement.
Here are some of the pertinent the components which provide guidance and insight for employers:
- Anti-Harassment Policies and Procedures. The proposed guidance outlines ways that employers can develop anti-harassment policies, processes, and training as well as implementation. There are additional examples of an employer’s actions that can weigh both for and against a finding of an effective anti-harassment program.
- Conducting Internal Investigations. The proposed guidance reinforces previous EEOC guidance regarding an employer’s duty to investigate harassment claims internally. However, it additionally notes that an investigation will be considered adequate if it “arrives at a reasonably fair estimate of truth” and is completed by an impartial party free from influence by the alleged harasser. The EEOC will assess the employer’s investigation and subsequent corrective actions based on how the employer utilized the “arsenal of incentives and sanctions” available to it to address the complained of harassment.
- Systemic Harassment in the Workplace. The proposed guidance recommends that employers retain records of all harassment complaints and investigations in order to best identify patterns of harassment. According to the EEOC, retention of these records can help employers to further improve their harassment prevention measures and training to the extent that employers recognize patterns of practice. It should be noted that the proposed guidance emphasizes employers’ requirement to adopt remedies to address the pattern and practice of harassment rather than just individual complaints.
- The EEOC Will Likely Pursue More Nuanced Legal Theories. There are a number of instances which suggest the EEOC will pursue more nuanced legal theories. For example, the guidance addresses “associational discrimination,” which has not previously garnered much attention. According to the EEOC, an individual can be harassed because the employee associates with someone in a different protected class or harassed because the complainant associates with someone in the same protected class. Such association may include, but is not limited to, close familial relationships, such as marriage, or close friendship with another individual belonging to a protected group. As another example, the EEOC indicates an individual may be able to establish a hostile work environment in situations where the employee’s job was merely “more difficult” because of the offending conduct. Examples like this suggest there will be an on-going push to expand legal theories and related remedies.
- Focus on Sexual Harassment. The proposed guidance reflected on updated statistics which place renewed focus on sexual harassment at work. Specifically, the guidance cites a 2021 Associated Press poll which reflected that, while only 35% say sexual misconduct is a very serious problem in the workplace (down from 56% in 2017), 54% say the recent attention to the issue has made them more likely to speak out if they were a victim of sexual misconduct, as well as 58% saying they are more willing to speak out if they were to witness it happening. The guidance also refers to a June 2016 report from the Commission’s Select Task Force on the Study of Harassment in the Workplace, which acknowledged that the severity of harassment may be enhanced if a complainant has reason to believe that the harasser is insulated from corrective action – i.e., where the alleged harasser was a highly valued employee, or the employer has previously failed to take appropriate corrective action in similar circumstances.
- Emerging Issues Regarding Online Harassment. While the proposed guidance primarily addresses work-related incidents, the EEOC also discussed emerging issues outside of the office such as virtual or online harassment. Given the abundance of digital technology and the advent of social media (and its role in the workplace), the proposed guidance sheds light on the increased likelihood that electronic communications can contribute to a hostile work environment.
- Updates on Protected Characteristic Standard. Utilizing recent EEO cases, the proposed guidance provides over a dozen detailed examples which address specific factors used to assess workplace harassment.
- Clarifications on the Severe-or-Pervasive Standard. The proposed guidance purports to clarify that the “severe-or-pervasive” standard takes a “middle path” that requires the conduct to be more than merely offensive but does not require that the conduct caused psychological harm.
- Single Incidents and Hostile Work Environments. While the proposed guidance provides a number of examples that relate to systemic or repeated incidents of harassment, it also provides examples of conduct that courts have recently found sufficiently severe to establish a hostile work environment based on a single incident.
As of October 2, 2023, the EEOC invited the public to submit its comments to the proposed guidance. The comment period will remain open until November 1, 2023, and can be found here.
Although the EEOC’s guidance does not have the force of the law, and therefore may be rejected by the court system, employers should nevertheless be aware of how the EEOC may evaluate and apply the law to various fact patterns. In that regard, this new guidance is useful in anticipating issues and the EEOC’s likely approach.
For questions about this new proposed guidance or other concerns regarding harassment in the workplace, please contact a member of our Labor & Employment Practice Group.