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The Laws, They Are a Changing, Part IV: What Employers Need to Know about the EEOC’s Enforcement Guidance on Harassment in the Workplace
In our recent series, “The Laws, They Are a Changing,” we have highlighted several significant legal developments impacting employers. If you missed these important articles, you can find them and other past articles online at Johnson Pope, Labor & Employment, Related Posts.
This final article in our series provides employers with highlights and key take aways from the EEOC’s updated Enforcement Guidance on Harassment in the Workplace (the “Enforcement Guidance”), which updates, consolidates, and replaces the agency’s five guidance documents issued between 1987 and 1999, and integrates the Supreme Court’s decision in Bostock v. Clayton County, which extended Title VII protections to cover sexual orientation and gender identity. Additionally, the Enforcement Guidance reflects the growing prevalence of virtual work environments and the implications of the #MeToo movement.
Although the EEOC’s Enforcement Guidance is not binding law, it “serves 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.” In other words, the Enforcement Guidance is the lens through which the EEOC will investigate charges, determine whether a basis exists for holding an employer liable, and decide whether to pursue civil litigation on behalf of a claimant.
1. Covered Bases
Federal law protects individuals from discrimination and harassment in the workplace on the basis of race, color, national origin, religion, sex, age, disability, and genetic information when employed by an employer with 15 or more employees (or with 20 or more employees for age). The Enforcement Guidance, however, gives much more detailed insight as to the scope of each category. Important clarifications from the Enforcement Guidance, with key language highlighted, are as follows:
- Race – Includes not just racial epithets or offensive comments about members of a particular race or harassment based on stereotypes about the individual’s race, but also harassment based on traits or characteristics linked to an individual’s race, such as the individual’s name, cultural dress, accent or manner of speech, and physical characteristics (e.g., harassment based on hair textures and hairstyles commonly associated with specific racial groups).
- Color – Includes an individual’s pigmentation, complexion, or skin shade or tone, such as harassment of Black employees with darker complexions but not those of lighter skin tones.
- National Origin – Includes traits or characteristics linked to an individual’s national origin, such as physical characteristics, ancestry, or ethnic or cultural characteristics (e.g., attire or diet), linguistic characteristics (e.g., non-English language accent or a lack of fluency in English), ethnic epithets or derogatory comments about an individual’s particular nationality, and use of stereotypes about the individual’s national origin.
- Religion – Includes explicitly or implicitly coercing employees to engage in religious practices at work, the use of religious epithets or offensive comments based on an individual’s religion (including atheism or lack of religious belief), religious practices, religious dress, religious stereotypes and requests for or receipt of a religious accommodation.
- Sex – Includes discrimination or harassment based upon not just a person’s biologically assigned sex, but also sexual orientation, gender identity, and “pregnancy, childbirth, and related medical conditions.”
- Sex-based harassment includes harassment based on sexual orientation or gender identity, including how that identity is expressed. Examples of sex-based harassment includes epithets regarding sexual orientation or gender identity; physical assault due to sexual orientation or gender identity; outing (disclosure of an individual’s sexual orientation or gender identity without permission); repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity; or harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex.
- If the harassment is linked to a targeted individual’s sex including pregnancy, childbirth, or related medical conditions (e.g., lactation, using or not using contraception, or deciding to have, or not to have, an abortion), it is generally prohibited by Title VII;
- Age – Includes comments and actions based on negative perceptions about older workers, stereotypes about older workers, even if they are not motivated by animus, such as pressuring an older employee to transfer to a job that is less technology-focused because of the perception that older workers are not well-suited to such work, or encouraging an older employee to retire.
- Disability – Includes an individual’s physical or mental disability, stereotypes about individuals with disabilities in general or about an individual’s particular disability, and traits or characteristics linked to an individual’s disability, such as how an individual speaks, looks, or moves. It also includes harassment based on the disability of an individual with whom the individual is associated, an individual’s record of a disability, even if the individual currently does not have a disability, and an individual’s request for or receipt of a reasonable accommodation.
- Genetic Information – Includes an individual’s, or an individual’s family member’s, genetic test or on the basis of an individual’s family medical history (e.g., harassment based on an individual carrying the BRCA gene, which is linked to an increased risk of breast and ovarian cancer, or because the individual’s mother recently experienced a severe case of norovirus, which resulted in overnight hospitalization).
2. Discrimination/Harassment
The Enforcement Guidance also provides clarity on what constitutes harassment and the conditions under which an employer can be held liable. It is important to note that an individual can be the victim of unlawful harassment even when the harasser is wrong about the victim’s protected characteristic or when the harassment is based upon the individual’s association with somebody with a protected characteristic (e.g., a White employee is harassed because the employee’s spouse is Black).
Examples of conduct that could be considered harassment include making ethnic, racial, or sex-based slurs; making comments based on stereotypes about older workers; forwarding offensive or derogatory emails; sharing pornography or sexually demeaning depictions of people, including AI-generated and deepfake images and videos; displaying offensive materials such as nooses, swastikas, or sexually explicit images; mimicking or mocking a person’s disability or accent; making fun of a person’s religious garments, jewelry, or displays; asking intrusive questions about a person’s sexual orientation, gender identity, or intimate body parts; making sexualized gestures or comments, even when this behavior is not motivated by a desire to have sex with the victim; and engaging in groping, touching, or physically assaulting a person.
The Enforcement Guidance also extends to harassment in virtual environments, recognizing that online behaviors can contribute to a hostile work environment. Virtual harassment can occur through electronic communications using private phones, computers, or social media accounts, even if it does not occur in a work-related context. For example, if an employee is the subject of ethnic epithets posted by a coworker on social media, and this conduct is known within the workplace, it can contribute to a hostile work environment. Additionally, conduct such as sexist comments during video meetings, racist imagery visible in a workspace, or inappropriate comments about personal spaces during video calls can also constitute virtual harassment.
3. Employer Responsibility and Liability
Employers are responsible for quickly ending harassing behavior once they learn about it, even if the harassment has not yet been severe enough or frequent enough to create a hostile work environment.
As explained in the Enforcement Guidance, an employer typically learns about potential harassment when: a) somebody, who does not need to be the victim, complains; b) an owner, manager, or supervisor witnesses the harassing conduct; or c) the harassing conduct is so open and obvious that an owner, manager, or supervisor reasonably should have known what was happening.
Upon learning of potential harassment, employers must promptly, impartially and thoroughly investigate any complaints of harassment. While the exact steps of an investigation will vary depending on the facts and circumstances surrounding each complaint, the EEOC describes an effective investigation as including:
- An assigned investigator who is impartial and unbiased and who is trained on harassment law and how to investigate harassment allegations;
- An investigation plan that is followed with steps taken to make sure neither the complainant nor the alleged harasser can influence the investigation, the investigator, or potential witnesses;
- Testimony, evidence, and other helpful information gathered (and preserved) from relevant witnesses and other sources, such as video cameras, company-provided cell phones, and email servers;
- Updates provided to both the complainant and the alleged harasser on the status of the investigation, as appropriate; and
- Disclosure to both the complainant and the alleged harasser of the employer’s conclusions and any actions it plans to take as a result of the investigation.
4. Prevention of Harassment
In addition to quickly ending and investigating harassment, the Enforcement Guidance emphasizes that employers must also take steps to prevent harassment from occurring by having an anti-harassment policy, an effective complaint process, and providing recurring training to all employees.
As set forth in the Enforcement Guidance an effective anti-harassment policy must be widely disseminated and be comprehensible to workers, including those who the employer has reason to believe might have barriers to comprehension, such as employees with limited literacy skills or limited proficiency in English. It should also:
- Define what conduct is prohibited;
- Require that supervisors report harassment when they are aware of it;
- Explain the employer’s complaint process, including the process’s anti-retaliation and confidentiality protections;
- Offer multiple avenues for reporting harassment, thereby allowing employees to contact someone other than their harassers; and
- Identify accessible points of contact to whom reports of harassment should be made, including contact information.
A policy that is not consistently enforced or does not contain an effective complaint process, however, is not sufficient. For a complaint process to be effective, it should generally provide for prompt and effective investigations and corrective action; adequate confidentiality protections (without limiting an employee’s ability to discuss working conditions, including workplace harassment, with others to the extent allowed by the National Labor Relations Act), and provide adequate anti-retaliation protections.
Finally, employers should also provide regular training that is tailored to their workplace to all employees. Effective training is often in a clear, easy-to-understand style and format that explains the employer’s anti-harassment policy and complaint process, including any alternative dispute resolution process, and confidentiality and anti-retaliation protections. Training should also provide supervisors and managers with information about how to prevent, identify, stop, report, and correct harassment, such as actions that can be taken to minimize the risk of harassment, and with clear instructions for addressing and reporting harassment that they observe, that is reported to them, or that they otherwise become aware of.
5. Next Steps
The Enforcement Guidance underscores the need for employers to have clear, accessible anti-harassment policies and effective reporting mechanisms. Employers should carefully review their anti-harassment and related polices to ensure that they are up to date and accurate. Employers should also evaluate whether their complaint, investigation and training processes are effective and properly followed. Now is also the time that employers should consider providing additional employee training if such training has been infrequent.
To read the full guidance document visit: https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace
A summary of key provisions is also available at: https://www.eeoc.gov/summary-key-provisions-eeoc-enforcement-guidance-harassment-workplace
THIS ARTICLE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE. LEGAL ADVICE CANNOT BE GIVEN WITHOUT INFORMATION ABOUT YOUR SPECIFIC SITUATION.