05/02/2024 | Press release | Distributed by Public on 05/02/2024 09:46
On April 29, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) released its final Enforcement Guidance on Harassment (the "Guidance") aimed at preventing harassment in the workplace. In releasing the Guidance, the EEOC noted that from fiscal year 2016 to 2023, more than one-third of charges received by the agency contained allegations of harassment based on race, sex, disability, or another protected characteristic. The Guidance will need to be reviewed and approved by the Office of Management and Budget prior to publication.
The recently released Guidance combines, revises, and supersedes the agency's five previous guidance documents issued between 1987 and 1999. It serves as a comprehensive and unified resource and incorporates recent legal developments, including the U.S. Supreme Court's decision in Bostock v. Clayton County, which extended Title VII protections to sexual orientation and gender identity. It also addresses current topics/issues including the #MeToo movement, social media, and remote work. However, the Guidance does not have the force and effect of statutory law and does not limit the EEOC's enforcement discretion in considering the facts of each case and applicable legal principles.
It is important to note that not all workplace conflict or friction triggers statutory Equal Employment Opportunity (EEO) protections. The Guidance states that EEO laws apply only when harassment is based on someone's protected characteristic. Engaging in rude behavior, teasing, or mistreatment due to a personality clash, without any association with a protected characteristic, is simply not violative of the laws enforced by the EEOC. Whether harassment is based on a protected characteristic will depend on the totality of the circumstances. Further, to violate the law, harassment must either involve a change in the individual's employment or create a hostile work environment.
Title VII protects covered employees from harassment based on race, color, religion, sex (including pregnancy, childbirth or related medical conditions; sexual orientation; and gender identity), national origin, disability, age (40 or older), or genetic information. A person can be subjected to unlawful harassment based on more than one protected characteristic, even when the harasser shares the same protected characteristic as the targeted individual and/or when the harasser is wrong about the target's protected characteristic. Harassment can result from behavior that is intended to embarrass, intimidate, or belittle a person because of a protected category.
The Guidance includes over 70 examples of what the EEOC considers to be unlawful harassment by coworkers, supervisors, customers, contractors, and other third parties. They involve a broad range of circumstances. Harassment, if sufficiently severe or pervasive, may include:
The EEOC will consider claims under the totality of the circumstances and on a case-by-case basis to determine whether a hostile work environment (HWE) exists when harassment based on a protected characteristic occurs. Courts evaluate whether the alleged harassment was severe or pervasive (the Guidance uses the word "frequent") enough to create an intimidating, hostile, or offensive environment sufficient to change the terms and conditions of the employee's employment. Whether the conduct is severe or pervasive enough to create a HWE is subject to both an objective (a reasonable person in the employee's position) and a subjective (the employee's perspective) test. When evaluating HWE claims, the EEOC noted the following:
Employers are responsible for preventing workplace harassment and quickly ending harassing behavior once they learn about it, even if the harassment has not yet risen to the level to be pervasive enough to create a HWE. In responding to a harassment complaint, employers should (1) timely and impartially conduct an investigation; (2) take appropriate corrective action if warranted; and (3) ensure the complainant is not subject to retaliation. The specific steps an employer should undertake in an investigation will depend on the facts and circumstances at hand. However, at all times investigations should be prompt, thorough, discreet, and well-documented. In deciding the appropriate level of corrective action, the EEOC opines that "the goals are to stop the harassment and prevent future harassment."
Additionally, to invoke the affirmative defense that an employer met their duty to exercise reasonable care, an employer must show both that it took reasonable steps to prevent harassment in general and that it took reasonable steps to prevent and correct the specific harassment raised by a particular complainant.
To prevent harassment, employers are strongly encouraged by the EEOC to:
Employers should review and, if appropriate, revise their policies, training, and/or reporting procedures to prevent and address harassment under Title VII. Although this newly released Enforcement Guidance on Workplace Harassment is not law, it provides helpful insight into the EEOC's enforcement priorities and guidance on how to mitigate risk relating to workplace harassment. The Guidance is not exhaustive and not intended to illustrate every possible factual situation that might involve unlawful harassment.
If you have questions about the EEOC's Enforcement Guidance, please contact the authors or any attorney with Frost Brown Todd's Labor and Employment practice group.