Is it on Your Reading List? The EEOC Released New Guidance On Workplace Harassment
By Raabia Cheema
Last month, the U.S. Equal Employment Opportunity Commission (EEOC) published new, final guidance on harassment in the workplace: Enforcement Guidance on Harassment in the Workplace (the “Enforcement Guidance”). The last time the EEOC released guidance on harassment was decades ago, in 1999. This long-awaited update acknowledges many changes in the law, including that workplace harassment can include sex-based harassment such as misgendering a worker or preventing an employee from accessing a bathroom that aligns with their gender identity, and it addresses harassment in virtual environments, including email usage and targeting on social media.
The Enforcement Guidance sets standards for workplace harassment under laws enforced by the EEOC - laws prohibiting workplace harassment on the basis of protected characteristics such as race, color, religion, sex (including sexual orientation; gender identity; and pregnancy, childbirth, or related medical conditions), national origin, disability, age (40 or older), and genetic information (including family medical history). The Enforcement Guidance emphasizes that employers are responsible for protecting employees from harassment by any person, including coworkers, customers, and clients.
The Enforcement Guidance focusses on the these three components of unlawful harassment:
1. Covered Bases and Causation: Was the harassing conduct based on the individual’s legally protected characteristic under applicable federal EEO statutes?
2. Discrimination with Respect to a Term, Condition, or Privilege of Employment: Did the harassing conduct constitute or result in discrimination with respect to a term, condition, or privilege of employment?
3. Liability: Is there a basis for holding the employer liable for the conduct?
The Enforcement Guidance is intended to serve as a “resource for employers, employees, and practitioners; for EEOC staff and the staff of other agencies that investigate, adjudicate, or litigate harassment claims or conduct outreach on the topic of workplace harassment; and for courts deciding harassment issues.” The update is comprehensive in addressing best practices in preventing and remedying harassment, and it is a valuable tool for HR practitioners who develop, manage and enforce harassment policies at work.
Developments. The EEOC expands on what it considers to be “harassment” under federal antidiscrimination laws:
- Race and Color. In the Enforcement Guidance, the EEOC separates color-based harassment from harassment based on race or national origin, thereby expanding potential harassment theories under Title VII. According to the EEOC, harassment based on color is “sometimes related to harassment based on race or national origin, color-based harassment due to an individual’s pigmentation, complexion, or skin shade or tone is independently covered by Title VII.” For example, “if a supervisor harasses Black employees with darker complexions but does not harass Black employees with lighter skin tones, this may be evidence that the harassment was due to color.”
- Pregnancy, Childbirth, or Related Medical Conditions. The EEOC clarifies that harassment based on pregnancy, childbirth, or related medical conditions may include “issues such as lactation; using or not using contraception; or deciding to have, or not to have, an abortion,” if that harassment is “linked to a targeted individual’s sex.”
- Sexual Orientation and Gender Identity. The Enforcement Guidance clarifies that discrimination based on sexual orientation or gender identity is a form of unlawful sex-based discrimination under Title VII. Therefore, harassing conduct based on sexual orientation or gender identity may include epithets, physical assault, “outing” (disclosing an individual’s sexual orientation or gender identity without their permission), or other derogatory conduct toward individuals on the basis of their “not present[ing] in a manner that would stereotypically be associated with that person’s sex.”
In light of the increased number of employees working remotely at least some of the time, the EEOC also recognized that harassment may occur in virtual environments. Sending racially insensitive jokes on a company email system, for example, or targeting employees on social media, fall under behaviors that would be scrutinized by the EEOC for potential harassment.
Looking Forward-- The Expansion of Hostile Work Environment Claims.
The Enforcement Guidance reiterates that EEO laws prohibit any harassment that creates a work environment that is both subjectively and objectively hostile. “Objective” hostility requires that conduct be sufficiently severe or pervasive to create a hostile work environment from the perspective of a reasonable person. Conduct does not need to be both severe and pervasive to establish a hostile work environment: the legal standard is severe or pervasive; “the more severe the harassment, the less pervasive it must be, and vice versa.” “Subjective” hostility considers whether the complainant actually found the conduct to be hostile.
Recent caselaw, however, suggests that this standard (particularly the requirement of objective hostility) may be curtailed in hostile work environment claims under Title VII. In April 2024, the US Supreme Court, in Muldrow v. City of St. Louis, Missouri, held that a person alleging a discriminatory transfer under Title VII need only show that the transfer caused them “some harm,” and that they need not show that the harm was “significant,” “serious,” or “substantial”, as some Circuits had previously held.
The ‘severe or pervasive’ standard in sexual harassment cases was first articulated by the US Supreme Court in Meritor Savings Bank v. Vinson, where the Court stated that “for sexual harassment to be actionable, it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim's] employment and create an abusive working environment.’” The Court later clarified, in Burlington Industries, Inc. v. Ellerth, that this standard was applicable to a particular subset of harassment claims—hostile work environment claims—whereas plaintiffs asserting a quid pro quo claim resulting in tangible employment actions did not need to establish that the harassment was severe or pervasive.
In Muldrow v. City of St. Louis, Missouri, the US Supreme Court held that Title VII did not require that a plaintiff show that the harm incurred was “significant” or “serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.” Rather, according to the Court, Title VII prohibits “discriminat[ing] against” an individual “with respect to” the “terms [or] conditions” of employment “because of that individual’s sex.” “Discriminate against” means “to treat worse, here based on sex”—“neither that phrase nor any other says anything about how much worse.” A harassment plaintiff does not need to establish an elevated threshold of harm to succeed under a Title VII claim for discriminatory transfer. Requiring such, the Court held, is to “add words—and significant words, as it were—to the statute Congress enacted.”
Although the US Supreme Court does not explicitly discuss the effect of the findings above in relation to hostile work environment claims, a curtailing of the “severe or pervasive” standard may be a logical outgrowth of this decision: requiring such a showing may be adding “significant words” to the Title VII statute. Notably, in 2019, New York amended its general anti-discrimination statute to clarify that a claim of harassment does not require a showing of “severe or pervasive” conduct by the employer. In 2022, the District of Columbia also shifted away from the “severe or pervasive standard” for harassment claims to an evaluation based on the “totality of the circumstances”. Similarly, in 2022 Maryland eliminated the “severe or pervasive” standard for sexual harassment claims.
Extensio Law will continue to closely monitor updates in this field and update our readers as additional developments arise.
