The U.S. Equal Employment Opportunity Commission (EEOC) issued proposed guidance entitled “Enforcement Guidance for Harassment in the Workplace” for employers enforcing laws that prohibit workplace harassment. The guidance, which the EEOC published in the Federal Register on October 2, 2023, provides the legal standards for workplace harassment claims and updated examples to illustrate situations that could lead to potential claims. In its guidance, the EEOC also incorporates new case law and information about the role of digital technology and social media postings in workplace harassment.
The EEOC reminds employers in its guidance that harassment is employment discrimination in violation of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), and the Americans with Disabilities Act (ADA). Harassment constitutes any unwelcome conduct based on race, color, religion, sex (including sexual orientation, gender identity, or pregnancy), national origin, older age (beginning at age 40), disability, or genetic information (including family medical history).
Understanding Illegal Harassment
Harassment becomes illegal when any of the following occurs:
- The offensive conduct becomes a condition of continued employment;
- The conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive; or
- The conduct occurs in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.
Offensive conduct can include offensive jokes or name-calling, physical assaults or threats, intimidation, ridicule, insults, offensive images, and any other interference with work performance. Illegal harassment may come from a direct supervisor, another supervisor, an agent of the employer, a co-worker, or a non-employee. The complaining party does not have to be the person being harassed and does not have to suffer economic injury or discharge for actionable harassment to exist. However, petty slights and isolated incidents generally will not rise to the level of prohibited conduct.
The EEOC unanimously approved a previous version of this guidance in 2017, but the Trump administration prevented its issuance due to disagreements about protections for LGBTQ+ workers. The new guidance is clear on its protection for LGBTQ+ workers and employees’ decisions related to abortion care.
Preventing Workplace Harassment
One key to preventing workplace harassment is for employers to create and enforce strong policies prohibiting sexual and gender-based harassment. These policies should provide clear examples of behaviors that constitute illegal conduct. All managers and supervisors should regularly undergo anti-harassment training. All employees should have access to a clear complaint or grievance process that is not reliant on a single person. Furthermore, the employer should immediately respond to employee complaints and swiftly impose consequences for prohibited conduct.
Workplace Harassment and Employer Liability
Employers face automatic liability for workplace harassment by supervisors culminating in adverse employment actions. However, employers can avoid liability in hostile work environment claim cases in selected circumstances. The employer may not be liable if it can show the following:
- The employer reasonably tried to prevent and promptly correct the harassing behavior; and
- The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
If a non-supervisory employee or non-employee whom an employer controls perpetrates the harassment, the employer is liable only if it knew or should have known about the harassment and failed to take prompt and appropriate corrective action to curb it.
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