EEOC’s Updated Guidance Provides Insight and Opportunity for Employers to Modernize Policy and Training

On April 29, the Equal Employment Opportunity Commission issued its Enforcement Guidance on Harassment in the Workplace. While not binding law, the new guidance aims to provide updated information on EEOC’s expanded view of what constitutes workplace harassment, including the expansion of Title VII’s prohibition on sex discrimination based on sexual orientation and gender identity as the U.S. Supreme Court determined in Bostock v. Clayton County in June 2020. This new guidance updates and replaces the EEOC’s previous five guidance documents to provide a single resource for the public on EEOC-enforced workplace harassment laws.

Some of the highlights of the guidance include a more comprehensive presentation of the EEOC’s views as to the application of federal EEO laws to potential harassment scenarios. The scenarios emphasize how harassment can affect vulnerable populations and underserved communities, including teen workers and survivors of gender-based violence. The EEOC states that discrimination against vulnerable populations and underserved communities is among its subject-matter priorities for fiscal years 2024-2028.

There are also examples to reinforce the EEOC’s perspective that harassment may occur between individuals who are in the same protected category. Similarly, there is also an explanation of liability based on multiple protected categories (Asian women or older women) or, when liability is based on the erroneous belief that a person falls into a particular protected characteristic such as the belief that a person has a particular national origin, religion, or sexual orientation and that belief turns out to be incorrect.

The guidance reaffirms that retaliation may 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 under the standards set forth by the U.S. Supreme Court in Burlington Northern & Santa Fe Railway Co. v. White.

A more robust and detailed explanation is provided of how to evaluate the totality of the circumstances to determine if the conduct is sufficiently severe or pervasive to alter the conditions of employment and create a hostile work environment. From the EEOC’s perspective, offensive conduct must either be severe or pervasive and need not be both to violate Title VII. The issue of whether conduct creates a hostile work environment depends on the totality of the circumstances, as viewed from the perspective of a reasonable person, and no single factor is determinative. The more severe the harassment, the less pervasive it must be, and vice versa.

The guidance also addresses liability for harassing conduct that is not directed at the complaining employee. The EEOC believes that harassing conduct directed at another employee can affect a second employee’s work environment thereby creating liability for an employer. Although the EEOC recognized that the more directly harassing conduct affects the complainant, the more probative it will be of the existence of a hostile work environment.

Along the same lines, while employers generally are not responsible for conduct that occurs in a non-work-related context, employers may be liable when the non-work-related conduct has consequences in the workplace and therefore contributes to a hostile work environment. Electronic communications between employees that affect the workplace, i.e. using private phones, computers, or social media accounts, may support a harassment claim. Fortunately, the EEOC stated directly that postings on a social media account generally will not, standing alone, contribute to a hostile work environment if the posts do not target the employer or its employees. However, an employee who is subjected to racist slurs and physically assaulted by coworkers on a city street may find the presence of those same coworkers in the workplace creates a hostile work environment.

The guidance reinforces the standard that the status of the harasser will determine the appropriate liability for the entity. An alter ego or proxy, such as the owner of the company, results in automatic liability and there is no defense to unlawful harassment. Similarly, an employer is vicariously liable for harassment initiated by a supervisor when the harassment results in a tangible job action. It is for this reason that the EEOC emphasized the need for employers to provide regular training for its employees on the prohibitions of Title VII, particularly training on the nuances resulting from recent court decisions, as well as the reporting requirements of employees experiencing harassing conduct. The EEOC also identifies the necessary components that, in its view, should be included in training and a complaint procedure to provide an employer with the Faragher/Ellereth, affirmative defense to any complaint of harassment.

Overall, the guidance provides employers and employees with a contemporary analysis of the EEOC’s views on its role in enforcing the ever-changing world viewed through Title VII.  But there are many issues left open.  Issues like the interplay between free speech and statutory harassment prohibitions were not addressed other than to say Title VII does not prohibit all workplace discussions of religious perspectives on issues such as abortion or gender identity.  The guidance did not address the interplay between the U.S. Constitution, Title VII (the religious organization exceptions), and the Religious Freedom Restoration Act or the interplay between an employer’s obligations to address workplace harassment under federal employment discrimination laws and to comply with the National Labor Relations Act.

Employers should utilize the EEOC’s updated guidance to ensure that their handbooks and policies are up to date with the latest standards and legal trends. Employers should also consider offering updated anti-harassment training in light of the EEOC’s updated guidance and view on an employer’s liability.

If you need assistance with your handbooks or policies, or offering updated training in light of the EEOC’s new guidance, please contact Yvette Heintzelman at yheintzelman@clarkhill.com or your Clark Hill attorney.

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