The EEOC Unveils Final Version of Enforcement Guidance on Harassment in the Workplace

On April 29, the U.S. Equal Employment Opportunity Commission (EEOC), after nearly seven years of effort, released updated guidance concerning harassment in the workplace. The updated guidance reflects three key developments emerging since the EEOC’s prior update: (1) the U.S. Supreme Court’s 2020 Bostock v. Clayton Cnty. Ga. decision, holding that Title VII’s prohibition on sex based discrimination encompasses discrimination based on sexual orientation and gender identity; (2) intersectional and intraclass harassment; and (3) the growth of remote work and telework after the COVID-19 pandemic.

As the EEOC outlines, sex-based discrimination under Title VII subsequent to the Bostock decision includes discrimination based on sexual orientation and gender identity. The EEOC outlines examples of harassing conduct based on sexual orientation or gender identity, including, among others, using epithets, disclosing a person’s sexual orientation or gender identity without permission, repeatedly and intentionally misusing a person’s pronouns, and preventing individuals from using a restroom or other sex-segregated facility that is consistent with their identity.

The EEOC’s updated guidance also includes substantive guidance on both intersectional harassment (harassment based on the “intersection” of two or more protected characteristics or classes) and intraclass harassment (harassment perpetrated by a member of the same protected class as the victim). The EEOC provides examples of each, including an example where a 51-year-old female employee is harassed based on age and gender (intersectional harassment) and an example where one female employee makes stereotypical discriminatory comments to another female employee about children and stay-at home mothers (intrasectional harassment). Both circumstances explicitly violate the EEOC’s updated guidance on workplace harassment.

Last, but certainly not least, the EEOC clarified that workplace harassment need not occur in person to violate its guidance and federal law. As the EEOC explained, conduct “occurs within the work environment if it is conveyed using work-related communications systems, accounts, devices, or platforms, such as an employer’s email system, electronic bulletin board, instant message system, videoconferencing technology, intranet, public website, official social media accounts, or other equivalent services or technologies.” Thus, if a remote employee uses his or her email account to send a harassing message to another employee, makes harassing comments during a virtual work meeting, or types harassing messages into a group chat, the employer can still be liable for workplace harassment.

Ultimately, the EEOC’s updated guidance emphasizes the importance of training employees on laws pertaining to harassment based on sexual orientation and gender identity and intrasectional and intersectional harassment. The EEOC’s updated guidance further emphasizes the necessity of instituting policies to prevent “virtual” harassment, especially in the telework and remote world emerging after the COVID-19 pandemic.

If you have any questions about the EEOC’s updated guidance and how it may affect your business, or if you need help with policy drafting, training, advice and counsel, or any threatened or pending litigation, please contact the authors of this alert.