EEOC Updates Workplace Harassment Guidelines

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EEOC Updates Workplace Harassment Guidelines

Vanessa Crakes

In April 2024 the United States Equal Employment Opportunity Commission (EEOC) published its updated guidance on workplace harassment,  Enforcement Guidance on Harassment in the Workplace.  The EEOC said this guidance will “help people feel safe on the job and assist employers in creating respectful workplaces.”

The guidance does not create new laws or regulations, but instead consolidates and updates previous EEOC guidance. The updates reflect legal developments such as the Supreme Court’s decision in Bostock v. Clayton County (2020), which extended Title VII protections to include sexual orientation and gender identity. The guidance also addresses emerging issues such as online harassment in virtual work settings.

The guidance is intended to serve as a resource on legal standards and employer liability for harassment claims under EEOC-enforced federal discrimination laws.

Federal Discrimination Laws

Federal discrimination laws prohibit 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 guidance reinforces that for harassment to violate the laws enforced by EEOC, it must be based on one of these legally protected characteristics.

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

  • involve a change to the terms, conditions, or privileges of employment (e.g., an employee is fired because the employee rejected a supervisor’s sexual advances); or
  • create a “hostile work environment.” A “hostile work environment” exists when harassment is so severe or pervasive that a reasonable person in the employee’s position would find the situation to be abusive.

Liability for Employers

The guidance also outlines various forms of employer liability for workplace harassment. If the harassment includes or culminates in a change to employment, then the employer is liable for the harassment. One example given is that if an employee is denied a promotion because he rejected a sexual advance from his supervisor, then the employer is liable.  For hostile workplace harassment, employer liability depends on the harasser’s role.  Employers are automatically liable for harassment by a “proxy or alter ego of the employer,” which is an individual of such high rank that their actions can be said to speak for the employer.  Employers are also automatically liable for actions of a supervisor where the supervisor took a tangible employment action as part of a hostile work environment. However, an employer will be held liable for harassment by non-supervisory employees only if the employer was negligent by failing to take reasonable steps to prevent the harassment or failing to take reasonable corrective action once it knew or should have known of the harassment.

Key Takeaways for Employers

The EEOC noted that harassment remains a serious problem in the workplace, representing more than one-third of the charges received by the EEOC.

The EEOC strongly encourages employers to:

  • have a clear, easy-to-understand anti-harassment policy;
  • have a safe and effective procedure that employees can use to report harassment, including more than one option for reporting;
  • provide recurring training to all employees, including supervisors and managers, about the company’s anti-harassment policy and complaint process; and
  • take steps to make sure the anti-harassment policy is being followed and the complaint process is working.

The EEOC issued a “Summary of Key Provisions” for the guidance document.  The EEOC has also published Promising Practices for Preventing Harassment, a resource to assist employers in preventing and addressing harassment.