In late April 2024, the Equal Employment Opportunity Commission (EEOC) published final guidance on harassment in the workplace. This marks the first time new guidance has been published on workplace harassment since 1999. The guidance takes into consideration issues that didn’t even exist or weren’t prevalent 25 years ago, such as virtual harassment and harassment based on an individual’s gender identity and sexual orientation. It consolidates and replaces all prior existing EEOC guidance, and the EEOC intends for employers to comply with it immediately.
It’s important that although the guidance isn’t legally binding, it indicates how the EEOC will interpret and enforce federal anti-harassment and anti-bias laws. As an employer, it’s incredibly important to take these guidelines seriously.
Why did the EEOC issue new guidance?
The workplace has changed dramatically in the last 25 years. Technological developments like email and videoconferencing now are regularly part of business. Furthermore, the Supreme Court’s decision in Bostock v. Clayton County, which held that Title VII’s ban on sex-based discrimination also prohibited discrimination based on gender identity and sexual orientation, has expanded the types of claims an individual can bring under Title VII.
The new EEOC guidance reflects these developments to ensure that employers have clear harassment policies and can implement their policies to better protect employees from any potential harassment in the workplace.
What constitutes harassment under the new guidance?
First, the guidance expands on several types of harassment that now are commonly known to be unlawful under Title VII and other federal anti-discrimination laws. It uses over 70 different examples to ensure that employers and employees alike are aware of what actions and words constitute unlawful harassment.
The guidance expands on harassment based on race and color, stating that color-based harassment is its own separate form of harassment. The EEOC recognizes that discrimination based on color isn’t only related to race or national origin, but it’s also based on an individual’s complexion or skin tone. These types of color-based harassment are also reflected in Title VII. For example, if a supervisor chooses to harass Black employees with darker complexions but doesn’t harass Black employees with lighter complexions, the supervisor still is violating Title VII. In this example, it simply doesn’t matter that all employees are of the same race or origin. The supervisor’s conduct still constitutes harassment.
The guidance also further clarifies unlawful harassment under the Genetic Information Nondiscrimination Act (GINA), providing an example to illustrate this type of harassment. For instance, it’s unlawful to harass an employee based on their own or a their family member’s genetic test results or medical history. This type of harassment could include harassing another employee because their family member recently experienced severe sickness and spent time in the hospital.
In addition to the already-existing types of harassment, the new guidance expands on other forms of harassment including virtual harassment, harassment based on sexual orientation or gender identity, and pregnancy- or childbirth-related harassment.
What’s Virtual Harassment?
Today, harassment may occur virtually through the work-related systems that an employee uses daily in the workplace. The guidance recognizes this, concluding that race-based or sex-based comments typed in a work group chat or made during a video conference, Zoom, or Teams call are unlawful forms of harassment. For instance, if a worker uses his work email and work-issued computer to send jokes to various colleagues that involve racial stereotypes about Black individuals, he’s engaged in unlawful harassment. These race-based jokes occurred in the work environment, because they were sent on workplace technology, even if the sender is at the workplace itself.
What’s Harassment Based on Gender Identity?
The EEOC reminded us that it’s unlawful sex-based discrimination for an individual to “out” another person or exhibit other harassing conduct because that person “does not present in a manner that would stereotypically be associated with that person’s sex.” Potential harassment here includes the repeated and intentional use of a name or pronoun that is inconsistent with an individual’s known or preferred gender identity and denying them the use of sex-segregated restrooms consistent with their gender identity.
It’s important that the guidance requires some sort of intent or knowing behavior here. The individual must know that they’re incorrectly misgendering another individual.
What’s Pregnancy-Related Harassment?
Pregnancy-related harassment isn’t an entirely separate category. That’s because it’s unlawful sex-based discrimination under Title VII. However, the EEOC’s new guidance here is especially important because of the many laws that have recently gone into effect regarding additional protections for pregnant women.
The EEOC mantains that behaviors and conduct about someone’s pregnancy, childbirth, or related medical conditions is harassment if it’s linked to the targeted individual’s sex. The guidance explicitly states that this can include issues such as lactation also known as nursing or breastfeeding, using or not using contraception, and/or deciding whether to have an abortion.
For example, someone directing negative comments at a female worker in the lactation room is harassment. A male worker knocking on the door of the lactation room and pretending that he was going to enter the room is harassment, too.
What do you need to do?
First, you should review your workplace policies to ensure that they forbid the kind of discriminatory conduct we’ve highlighted here. That certainly includes discrimination and harassment of LGBTQ+ employees and pregnant employees. You also should ensure that your workplace policies and trainings are compliant with State law as well, as the guidance we’re addressing here applies only to Title VII and other federal laws. As we’ve written about at length, New York has some of the most protective laws in the country, and the agencies charged with rooting out harassment and discrimination at work are decidedly employee-friendly. So take care now to ensure your policies are compliant.
The EEOC no longer requires an employer to meet minimum features for its anti-harassment policies or anti-harassment training to be considered effective. Instead, the guidance identifies those features that a policy or training should contain. While these are not required components, and instead are examples of what an effective policy and training would contain, employers are well-advised to take this guidance seriously and ensure policies, trainings, and the behaviors and conduct of your entire workforce are consistent with the law.
What’s an effective anti-harassment policy?
According to the EEOC’s new guidance, the policy should:
· Define what conduct is prohibited;
· Be widely disseminated to employees;
· Require supervisors to report harassment when they’re aware of it;
· Be clear and easy for workers to understand;
· Clearly identify a point of contact to whom reports of harassment should be made; and
· Explain the complaint process.
What’s an effective anti-harassment training program?
The EEOC maintains that effective anti-harassment trainings will:
· Explain the employer’s policy and complaint process;
· Describe and provide examples of prohibited conduct;
· Explain the rights of employees if they experience, observe, or report any conduct that they believe may be prohibited;
· Be provided on a regular basis to all employees; and
· Be in a clear, easy-to-understand style and format.
So what should NY employers do today?
It’s frustrating that the EEOC contends that even with these sorts of policies and trainings in place, employers may still be liable and the EEOC or a court may conclude the employer hasn’t exercised reasonable care. What does make sense, however, is that if an employer has these policies and trainings simply sitting on the shelf [or in a file drawer] but they’re not being actively implemented in the workplace, they won’t be effective, and unlawful behaviors may occur. This is, of course, because employees won’t be educated about what’s acceptable – and what’s not – under federal law. As we noted above, NY law is just as, if not more, stringent, so employers are well-advised to take the guidance seriously.
In addition to this guidance, the EEOC also published a Summary of Key Provisions and a fact sheet for small business owners, with more information.
As always, if you have questions or concerns, we’re here to help. Give us a shout at 716.839.9700 or info@coppolalegal.com.
