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

The Equal Employment Opportunity Commission ("EEOC") released its Proposed Enforcement Guidance on Harassment in the Workplace.  In light of recent legal developments, such as the Bostock v. Clayton County decision, which held that Title IX protects transgender persons from discrimination on the basis of sex, the #MeToo movement, the increase in remote work, changes to abortion rights, and changes in the way harassment may occur (e.g., online bullying or harassment), the proposed guidance illustrates the EEOC’s current interpretation of “existing requirements of the law” and/or its policies.  Here are some notable parts of the guidance:

• The EEOC views sex-based harassment to include harassment based on a woman’s reproductive decisions, such as contraception or abortion or “intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.”
• The EEOC also reaffirmed that conduct occurring in virtual work environments, including electronic communications using private phones, computers or social media accounts, can contribute to a hostile work environment if they impact the workplace.  For example, the EEOC said, “[g]iven the proliferation of digital technology, it is increasingly likely that the non-consensual distribution of real or computer-generated intimate images using social media can contribute to a hostile work environment, if it impacts the workplace.”
• Relatedly, employers can be held liable for harassment based on their employee’s personal activity outside of the workplace, including over social media.  The EEOC takes the view that conduct occurring outside the workplace that affects the terms and conditions of employment and/or has consequences in the workplace can still create a hostile work environment.  The EEOC provided the following example: “An Arab American employee is the subject of ethnic epithets that a coworker posts on a personal social media page, and either the employee learns about the post directly, or other coworkers see the comment and discuss it at work, then the social media posting can contribute to a racially hostile work environment.”  In another example: A Black woman alleged she was the subject of her two black coworkers’ harassing conduct at work, culminating in an offensive race-based Instagram post.  Based on these facts, an investigator found that the combined conduct, including the social media post, was sufficient to create a hostile work environment.
• The EEOC clarified that, in its view, a complainant need not prove that they found the conduct both subjectively harassing and unwelcome.  To the EEOC, this showing is one in the same – if the complainant views the harassment unfavorably, then it will also necessarily be unwelcome. 
• The EEOC also reminded employers that with respect to the need to show that the harassment was “objectively” hostile, which requires a determination of what the “reasonable” person would think, the reasonable person is one that shares the complainant’s protected class.   
• The EEOC also spent considerable time in the guidance document focusing on the standards for employment liability and mitigation thereof.  One area on which it focused relates to employer liability for its supervisor’s actions, including that employers can be held liable for a co-worker’s actions where the complainant reasonably believes that the co-worker has “apparent” supervisory authority over them – that is, that the complainant reasonably believed the coworker had the power to recommend or influence tangible employment actions (e.g., hiring and firing) against the complainant.  This is more likely to happen, the EEOC stated, where “the chain of command is unclear or the harasser has broad delegated powers,” and further, the employer may still be held liable even if the co-worker was mistaken in their belief about the co-worker’s authority. 
• The proposed guidance also clarifies the information it expects employers to include in their anti-harassment policies to better enable the employer to eliminate or reduce potential liability via a showing that they exercised reasonable care to prevent the harassment.  Specifically, the guidance clarifies that an effective anti-harassment policy should be “comprehensible to workers, including those who the employer has reason to believe might have barriers to comprehension” (e.g., limited English proficiency), and should include: a definition of the prohibited conduct; a requirement that supervisors report harassment; a statement that “[c]learly identifies accessible points of contact” for reporting purposes, including contact information; and explain the complaint process, including “adequate” anti-retaliation and confidentiality protections.
• Focusing on a manager’s conduct, the proposed guidance also reminds employers that supervisors play a critical role and are often an employer’s “first line of defense,” as a supervisor’s actions (or inactions) can lead to liability.  A company may lose its defense that it took reasonable corrective action in response to an employee’s complaint where a supervisor, responsible for reporting such conduct, failed to report and address such behavior.  For example, the EEOC wrote, when a supervisor fails to report or take any action in response to an employee’s initial complaint of sexual harassment, the company may not contend in court or at the administrative level that it took reasonable corrective action by responding to the employee’s subsequent second complaint of the inappropriate conduct to Human Resources.  In this instance, because of the supervisor’s responsibility to report inappropriate conduct, and failure to do so, the company lost its defense that it took reasonable action in promptly responding to the employee’s complaint.

The EEOC's proposed guidance is available for public comment (here) until November 1, 2023. Even if formally adopted, the guidance will not have the effect of binding law, but it will serve as a resource for the EEOC and other agencies and as a useful resource for employers in understanding how the EEOC interprets and applies anti-harassment principles. Given the current focus at the EEOC on the enforcement of harassment claims, employers are encouraged to review the proposed guidance, consider submitting comments, and review and update their policies and trainings.

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