What Employers Need to Know About the EEOC’s Proposed Guidance on Workplace Harassment

On September 29, 2023, the EEOC released its Proposed Enforcement Guidance on Harassment in the Workplace.  If adopted following the rule-making process, this will be the first time the EEOC has provided guidance on workplace harassment since 1999.

The proposed guidance consists of three main sections: (1) Covered Bases and Causation; (2) Discrimination with Respect to a Term Condition, or Privilege of Employment; and (3) Liability.  The proposed guidance also touches on issues of systemic harassment and provides links to other EEOC harassment-related resources.  Each section consists of a detailed legal analysis of what constitutes actionable harassment under various circumstances, including guidance on what rises to the level of severe or pervasive harassment.

Also, recognizing how employment has evolved over the last several years, the proposed guidance specifically addresses how harassment can occur via technology and in virtual work settings.  For instance, sexist comments made during a video conference or racist images shown using work-related communications systems, like an employer’s email system or official social media accounts, can contribute to a hostile work environment.  Actionable harassment can also occur even if the conduct takes place in a non-work-related context.  For example, the proposed guidance notes that it is possible that the non-consensual distribution of an employee’s intimate images using personal social media accounts can contribute to a hostile work environment if the subject of the image learns about the social media post or other coworkers see the image and discuss it at work.

Another helpful section to note is the proposed guidance on how to effectively implement an anti-harassment policy, complaint process for addressing harassment, and anti-harassment training, including what features should be included.  It also explains how these anti-harassment measures can sometimes help the employer avoid liability by demonstrating it used reasonable care to prevent or correct allegations of harassment.

These are just a few highlights from the proposed guidance.  If you have any questions about the proposed guidance or workplace harassment in general, please contact the authors of this article or any member of our team.  In the meantime, Thompson & Horton will continue monitoring the rule-making process.