EEOC Workplace Guidance to Prevent Harassment

December, 17 2024

On April 29, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) published its final guidance on harassment in the workplace, “Enforcement Guidance on Harassment in the Workplace “. The guidance provides information on the legal standards and employer liability applicable to harassment claims under federal employment discrimination laws enforced by the EEOC. It is intended to assist employers in creating respectful workplaces.

The EEOC’s updated guidance offers a robust framework for understanding and enforcing equal employment opportunity (EEO) laws against harassment. It underscores the need for a workplace free from discrimination based on protected traits, including race, colour, religion, national origin, sex, disability, age, and genetic information. The guidance also addresses contemporary issues such as online harassment, which has become increasingly prevalent with the rise of remote working.

The purpose of the final guidance is to provide a legal analysis of standards for harassment and employer liability applicable to claims of harassment under agency-enforced EEO laws and to communicate the EEOC’s position on important legal issues. The guidance serves as a resource for employers, employees, and practitioners, as well as agency staff members investigating, adjudicating or litigating harassment claims and courts deciding harassment issues. The final guidance focuses on three main components of a harassment claim, each of which must be satisfied for harassment to be deemed unlawful under federal EEO laws, including:

• Protected traits and causation (the conduct must be based on the individual’s legally protected trait);
• Discrimination with respect to a term, condition, or privilege of employment (the conduct must result in either an explicit change to the terms or conditions of employment or a hostile work environment); and
• Employer liability (there must be a legal basis for holding the employer liable for the harassing conduct).

Important Updates

In addition to the three components noted above and described in more detail below, the EEOC guidance includes a number of notable updates from the previous guidance, including:

• The definition of “sexual harassment” broadened to include protections for LGBTQI+ workers. The definition of “sexual harassment” is expanded to include harassment on the basis of sexual orientation and gender identity/transgender status. In its updated guidance, the EEOC highlights examples of unlawful harassment under this expanded definition, including the denial of access to a bathroom consistent with an employee’s gender identity, the intentional and repeated misgendering of an individual, and the disclosure of an individual’s sexual orientation or gender identity without permission (outing).

• Expanded protections for pregnancy-related conditions: The definition of sexual harassment is also extended to include pregnancy, childbirth and other “related medical conditions.” The EEOC explains that such conditions include lactation, the use of contraceptives, and the decision to have or not have an abortion.
• Online harassment and other remote work considerations: The EEOC guidance clarifies that illegal harassment can occur in a virtual work environment, in the same way as a physical environment, through online communication platforms and systems, including an employer’s email system, instant messaging system, electronic bulletin board, instant message system, videoconferencing technology, intranet, public website, social media accounts, or other equivalent services or technologies. The final guidance provides examples of such harassing conduct, including sexist comments made during a video meeting, ageist or ableist comments typed in a group chat, and racist imagery that is visible in an employee’s workspace. In contrast, the employee participates in a video meeting or sexual comments made during a video meeting about a bed being near an employee in the video image.
• Clarification regarding religious expression protections: The final guidance provides some clarity regarding balancing religious accommodations and expanded protections for pregnancy-related conditions and LGBTQI+ workers. Specifically, although employers must accommodate an employee’s sincerely held religious beliefs in the workplace, the guidance states that employers are not required to accommodate religious expression if such accommodation creates or reasonably could create a hostile work environment.

Employers should review and update their anti-harassment policies and practices to ensure compliance with the EEOC’s Enforcement Guidance on workplace harassment. Further, employers should train their managers and supervisors on how to recognise, respond to and prevent workplace harassment.