Allison N. Genard, Esq., Campbell Durrant, P.C. | December 2023
On October 2, 2023, the Equal Employment Opportunity Commission (“EEOC”) released its updated Proposed Enforcement Guidance on Harassment in the Workplace. When the proposed guidance becomes final, it will supersede several of the EEOC’s previous guidance documents including, Compliance Manual Section 615: Harassment (1987); Policy Guidance on Current Issues of Sexual Harassment (1990); Policy Guidance on Employer Liability under Title VII for Sexual Favoritism (1990); Enforcement Guidance on Harris v. Forklift Sys., Inc. (1994); and Enforcement Guidance on Vicarious Liability for Unlawful Harassment by Supervisors (1999).
Despite issuing guidance for decades, the EEOC has found that harassment and discrimination remain a serious workplace problem. The proposed Guidance integrates past guides on several issues and provides extensive discussion of all facets of discrimination and harassment in the workplace. It contains valuable information including a legal analysis of standards for harassment and employer liability, recommendations for policy review and updates, and provides examples for training or comparison when conducting investigations and adjudications of harassment complaints. Most importantly, the proposed Guidance discusses several new and developing topics in workplace harassment.
The Guidance specifically addresses harassment based upon Pregnancy, Childbirth, or Related Medical Conditions. Employers need to be aware of the issues surrounding harassment of pregnant workers as sex-based harassment under Title VII of the Civil Rights Act of 1964, the newly enacted Pregnant Workers Fairness Act and the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act, which explains that harassment can occur not only around pregnancy, but also childbirth, related medical conditions, and women’s reproductive decisions.
Following a number of court decisions in recent decades, it is clear that Title VII also prohibits harassment and discrimination based upon sexual orientation and gender identity. The EEOC explains that harassment under these categories can look like epithets or derogatory comments about someone’s sexual identity or orientation, denying access to a bathroom consistent with the individual’s gender identity, intentional and repeated use of pronouns or names inconsistent with an individual’s gender identity, and harassment because the individual does not present in a manner stereotypically associated with their gender.
Another new topic discussed in the Guidance is genetic information harassment. This topic has become more prevalent as more individuals do genetic testing to determine ancestral backgrounds and uncover genetic markers for diseases and illness. The EEOC clarifies that it is illegal to engage in harassment based on an employee’s, or employee’s family member’s, genetic information such as carrying a BRCA gene or because a family member has cancer.
The proposed Guidance also addresses the series of cases from the early 2000’s establishing that a single incident of harassment can create a hostile work environment if the incident is sufficiently severe. The EEOC explained that sexual assault, sexual touching of an intimate body part, physical violence, symbols of violence or hatred toward a protected characteristic, use of animal imagery to denigrate a protected characteristic, threat of denying an employment benefit for rejecting sexual advances, and the use of the n-word by a supervisor in the presence of a black subordinate are a few examples of events that can create a hostile work environment in a single instance. Employers need to be aware that these are the exceptions to the severity based upon a totality of the circumstances analysis typically performed under the hostile work environment analysis and can create liability if not handled appropriately.
Employers should review this Guidance, especially the new and developing topics, and take the following actions. First, the Guidance should be incorporated into policies, employee handbooks, and procedures. Failing to keep current on policy changes can result in employer liability. Second, the Guidance should be incorporated into regular harassment, discrimination, and workplace civility training. The EEOC reiterates that having policies is insufficient without adequate training on workplace harassment and discrimination. Finally, the Guidance should be reviewed by investigators and referred to during investigations to avoid dismissal of behavior that the EEOC and courts have said constitutes harassment or discrimination.