First EEOC Guidance on Harassment Since 1999 Is Open for Public Comment Until November 1

On September 29, the Equal Employment Opportunity Commission (EEOC) released draft enforcement guidance on workplace harassment, which was published in the Federal Register on October 2. The proposed guidance will be open for public comment until November 1.

Through this proposed guidance, the EEOC seeks to provide clarity on recent developments in the law. It is the first guidance issued and voted on by the EEOC that deals with harassment since 1999. The EEOC states that the guidance will supersede several earlier guidance documents released by the EEOC in previous years. The “sub-regulatory document” was approved by a 3-2 vote of the commissioners. The guidance also notes that it addresses systemic harassment and provides links to other harassment-related resources.

Previously, in 2017, the EEOC posted and requested public input on proposed guidance on workplace harassment, but it was never finalized. Further changes in the recent guidance reflect the Supreme Court’s decision in Bostock v. Clayton County (which made discrimination on the basis of LGBTQ status a form of unlawful sex discrimination), the #MeToo movement, and other issues, including virtual or online harassment.

The proposed guidance focuses on the three components of a harassment claim:

1. Whether the conduct was based on the individual’s legally protected characteristic under the federal EEO statutes
2. Whether the harassing conduct resulted in discrimination with respect to a term, condition, or privilege of employment
3. Whether there is a basis for holding the employer liable for the conduct

More specifically, the guidance explains the legal standards and employer liability applicable to harassment claims under the federal employment discrimination laws enforced by the EEOC, and it includes updated examples of various scenarios, incorporating current case law on workplace harassment in those examples. Such discrimination laws protect covered employees from harassment on the basis of race, color, religion, sex (including sexual orientation, transgender status, and pregnancy), national origin, disability, age (40 and older), or genetic information. The guidance also addresses the amplification of digital technology and how social media and other online content can contribute to a hostile work environment.

The EEOC stated that workplace harassment remains a serious issue; harassment was included as an allegation in more than one-third of the charges the EEOC received in fiscal years 2018 through 2022. Employers who wish to submit comments to the EEOC concerning the proposed guidance should visit the federal e-regulation website before November 1.

Steptoe & Johnson’s Labor & Employment Compliance Team is familiar with navigating the ever-changing landscape of EEOC guidance to ensure clients are in compliance with and updated on the most recent laws. Our attorneys can assist you with the drafting of policies and employee handbooks, investigations of harassment allegations, harassment-based training, and harassment-based litigation.