On September 29, 2023, the EEOC invited the public to comment on its proposed “Enforcement Guidance on Harassment in the Workplace.” This has been long-awaited guidance since an update was first proposed in 2017 but was never finalized. This newly proposed guidance reflects several changes in the law, including the Supreme Court’s decision in Bostock v. Clayton County, and issues such as online harassment.
In Bostock, the Court held that the prohibition on employment discrimination “because of sex” includes discrimination based on sexual orientation and gender identity. The updated EEOC guidance reflects this to expand the meaning of sex-based discrimination in the workplace officially. Sex-based harassment now includes not only harassment based on sexual orientation and gender identity, but how that identity is expressed. This means that epithets targeting someone’s sexual orientation or gender identity, physical assault, and any harassment because a person does not present outwardly in a manner that fits the stereotype associated with that person’s gender is included under the new guidance. Furthermore, the intentional and repeated misgendering of an individual or denying access to a restroom or other sex-segregated facility consistent with that person’s gender identity will constitute sex-based harassment.
The updated guidance also includes more information regarding virtual or online work environments. With modern workplaces being virtual, as well as in person, work-related emails, instant messaging systems, and videoconferencing technology play an even bigger role. The guidance notes that conduct within an online environment can contribute to a hostile workplace just as much as conduct within a physical, in-person environment. Employers will need to be wary of sexist or racist comments made during video meetings and monitor background imagery that may be visible in an employee’s virtual workspace. Additionally, the updated guidance provides new examples about how such online interactions, social media postings, and other online content can contribute to a hostile work environment.
Notably, the proposed update to the guidance notes that “harassment remains a serious workplace problem.” Over one-third of charges received by the EEOC include allegations of some form of workplace harassment. To address this, two strategic priorities related to harassment are identified. These are to prevent and remedy systemic harassment, and to protect vulnerable workers and people from underserved communities from harassment.