EEOC Shines Light on Harassment Enforcement Priorities with New Guidance

The Equal Employment Opportunity Commission recently published its proposed “Enforcement Guidance on Harassment in the Workplace” and has invited the public to comment until November 1, 2023. When finalized by the agency, this will supersede and provide long overdue updates to several previous publications involving enforcement guidelines to reflect the digital age. The EEOC’s last attempt to implement workplace harassment enforcement guidelines was back in 2017, but the guidance was never finalized. The new EEOC document provides guidance for the implications for employer liability in harassment claims involving discrimination on the basis of race, color, religion, sex, national origin, disability, age, or genetic information.

The enforcement guidance is intended to make the public, employers, employees, and legal practitioners aware of the EEOC’s stance on workplace harassment issues in light of several legal and cultural changes from the past few years. One important legal change is the Supreme Court’s decision in Bostock v. Clayton County, which held that under the Title VII, an employer may be held liable for employment discrimination on the basis of gender and sexual orientation even if it shows it treats males and females equally. The facts in Bostock specifically apply to discrimination against transgender individuals and other gender non-conforming individuals, and the new enforcement guidelines to reflect the EEOC’s adoption that Bostock applies with equal force to discharge and harassment claims. The guidelines include specific guidance and scenarios addressing the proper enforcement of workplace harassment laws when discriminatory harassment on the basis of sex occurs against transgender individuals. For example, the EEOC notes that the repeated, intentional misuse of a transgender employee’s name or pronouns (an all-too-common occurrence) and refusal to allow the employee to use the restroom consistent with gender identity could be sufficiently severe and pervasive to support a hostile work environment claim based on sex.

Another major change is the EEOC’s acknowledgement of digital harassment and how the use of artificial intelligence can contribute to a hostile work environment. The EEOC specifically addresses how the prevalence of AI-generated images could lead to the distribution of falsified images without the consent of the subject, which could amount to workplace harassment. The enforcement guidelines also specify that harassment that occurs within the working environment over social media, videoconferencing platforms (such as Zoom), instant messaging boards, or employer-affiliated email system is tantamount to workplace harassment, even if it occurs online. This could include discriminatory comments made over email, instant message, or videoconference, inappropriate images in an employee workspace over videoconference, or any other form of harassment that takes place over a virtual platform. With this new guidance, the EEOC shines additional light on the possibility that discrimination and harassment may occur outside of a traditional office environment.

Providing guidelines for handling workplace harassment is a high priority for the EEOC, as one-third of charges received by the EEOC included a harassment claim. The guidelines also reflect two top priorities on the EEOC’s Strategic Enforcement Plan for fiscal years 2024-2028: “preventing and remedying systemic harassment, and protecting vulnerable workers and people from underserved communities from harassment.”

Key Take-Aways

• EEOC enforcement guidance provides insight into how charges of discrimination and harassment will be handled by the EEOC, as well as its enforcement priorities.
• Employers should keep abreast of two particular categories of protected status: transgendered and neurodivergent persons. The law is beginning to catch up with the science and social trends to afford these employees greater inclusion and, if necessary, accommodation.
• The guidance also reflects the growing focus on unintentional discrimination. Pattern or practice claims – where an employer has a policy of not having or enforcing a harassment policy – are likely to increase. This is especially true in virtual environments, and employers should establish policies, training, and perhaps heightened monitoring to prevent and respond to digital harassment.
• Inevitably certain issues related to harassment have currency in the political arena. However, political debate, no matter how heated, has little bearing on an employer’s obligations under Title VII, and employers focus on how the EEOC intends to enforce various anti-discrimination statutes.

* Allison Garrett, Law Clerk, assisted in the research and drafting of this post. Garrett is a 3L student at the University of Missouri School of Law.