Equal Employment Opportunity Commission Issues New Workplace Harassment Guidance

On April 29th, 2024, the Equal Employment Opportunity Commission (EEOC) issued a new final guidance on harassment in the workplace.  The rule in intended to provide guidance to employers on how to prevent harassment, stating legal standards regarding employer liability if a worker faces discrimination or harassment in the workplace. 

The EEOC press release describes the new guidance on existing discrimination laws: 

These laws protect 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 

The new guidance updates, consolidates, and replaces the agency’s five guidance documents issued between 1987 and 1999, and serves as a single, unified agency resource on EEOC-enforced workplace harassment law. It reflects the Commission’s consideration of the robust public input that it received after the guidance was posted for public comment in fall 2023. 

The EEOC Chair Charlotte A. Burrows stated: “Harassment, both in-person and online, remains a serious issue in America’s workplaces. The EEOC’s updated guidance on harassment is a comprehensive resource that brings together best practices for preventing and remedying harassment and clarifies recent developments in the law,”. 

EEOC’s General Information on Workplace Harassment 

The EEOC provided a summary of key provisions of their latest guidance. The summary is provided in a frequently asked questions (FAQ) format.  Highlights include: 

Which laws enforced by the EEOC prohibit harassment in the workplace? 

All laws enforced by the EEOC prohibit workplace harassment that is based on a protected characteristic. The protected characteristics covered by the laws the EEOC enforces are 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). 

When does workplace harassment violate the law? 

For harassment to violate the law, it must be based on a legally protected characteristic (see question #[1]). Being rude, teasing, or mistreating somebody because of a personality conflict, without a connection to a protected characteristic, does not violate the laws enforced by the EEOC. 

Further, to violate the law, harassment based on a protected characteristic must either: 

  1. involve a change to the victim’s employment (e.g., an employee is fired, demoted, denied a promotion or transfer, reassigned, or receives reduced hours or pay because the employee rejected a supervisor’s sexual advances); or 
  2. create a “hostile work environment” 

What are some examples of harassing conduct that is based on legally protected characteristics? 

Harassment can take many forms, including: 

  1. saying or writing an ethnic, racial, or sex-based slur; 
  2. forwarding an offensive or derogatory “joke” email; 
  3. displaying offensive material (such as a noose, swastika, or other hate symbols, or offensive cartoons, photographs, or graffiti); threatening or intimidating a person because of the person’s religious beliefs or lack of religious beliefs; 
  4. sharing pornography or sexually demeaning depictions of people, including AI-generated and deepfake images and videos; 
  5. making comments based on stereotypes about older workers; 
  6. mimicking a person’s disability; 
  7. mocking a person’s accent; 
  8. making fun of a person’s religious garments, jewelry, or displays; 
  9. asking intrusive questions about a person’s sexual orientation, gender identity, gender transition, or intimate body parts; 
  10. groping, touching, or otherwise physically assaulting a person; 
  11. making sexualized gestures or comments, even when this behavior is not motivated by a desire to have sex with the victim; and 
  12. threatening a person’s job or offering preferential treatment in exchange for sexual favors. 

EEOC Guidance – “What is a hostile work environment”? 

The EEOC guidance describes a hostile work environment as an environment with harassment so severe or frequently (“pervasive”) that a reasonable person would find the situation abusive.  This makes each situation a case-by-case basis, judged based on individual considerations including: 

  1. A victim does not need to show harassment was both severe and frequent, just one of those two.  
  2. One instance of severe misconduct may be severe enough to qualify. Examples include sexual assault such as touching intimate body parts, or a violent act, or use of racial slurs by a supervisor. 
  3. Status matters, a manger or supervisors conduct to employees under their guidance, or the actions of an owner, carry more weight than an action between two coworkers. 
  4. Harassment can occur without an employment effect such as firing, demotion, or reduction in salary or hours. Nor does the harassment have to cause a reduction in productivity of the employee affected. 

An employee can show a hostile work environment by showing: 

  1. Conduct: The employee was subject to conduct based on a protected characteristic 
  2. Objective Hostility: The conduct was either severe or frequent (or both). 
  3. Subjective Hostility: The subject found the activity hostile. 
  4. Liability: The employer is liable for the alleged harassment. 

For objective hostile actions, the employer’s work environment is reviewed based on the “totality of circumstances”. This includes the harassment severity, frequency, if and how threatening and physical threatening the actions were, and how much the harassment interfered with the workers’ ability to safely and without humiliation perform their job. 

Employment Law Firm 

If you have a question about your employment and employment laws, we invite you to schedule a consultation with an employment law attorney in our California, Texas or Puerto Rico offices. Schneider Wallace Cottrell Konecky LLP is a national law firm that represents employees in a wide range of employment law cases, including class action lawsuits involving the failure to pay wages, overtime pay and commissions. Contact us at 1-800-689-0024. 

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