EEOC Proposes New Guidance to Help Employers Handle Evolving Harassment Issues

The U.S. Equal Employment Opportunity Commission (EEOC) recently released draft enforcement guidelines regarding workplace harassment, titled “Proposed Enforcement Guidance on Harassment in the Workplace.” This marks the EEOC’s first attempt to update this topic in six years. The EEOC previously issued draft enforcement guidance for public comment during President Trump’s administration. That 75-page proposed update was intended to replace a version last revised in the 1990s, but it was never finalized. Now, the new proposed guidance is scheduled to be published in the Federal Register on Monday, Oct. 2, with a public comment period open until Nov. 1.

The new guidance encompasses big-ticket employment law items, such as Bostock v. Clayton County, where the Supreme Court held that Title VII prohibits sex discrimination on the basis of gender orientation and sexual identity, the COVID-19 pandemic, the #MeToo movement, and other emerging issues. By way of example, the draft enforcement guidance makes clear that harassment may be based on race, color, national origin, religion, sex (pregnancy, childbirth, sexual orientation, and gender identity), age, disability, and genetic information.

The EEOC’s proposed guidance is also replete with fact-specific examples of harassment for employers to review. Some of those examples include:

Harassment Based on Gender Identity. Jennifer, a cashier at a fast food restaurant who identifies as female, alleges that supervisors, coworkers, and customers regularly and intentionally misgender her. One of her supervisors, Allison, frequently uses Jennifer’s prior male name, male pronouns, and “dude” when referring to Jennifer, despite Jennifer’s request for Allison to use her correct name and pronouns; other managers also intentionally refer to Jennifer as “he.” Coworkers have asked Jennifer questions about her sexual orientation and anatomy and asserted that she was not female. Customers also have intentionally misgendered Jennifer and made threatening statements to her, but her supervisors did not address the harassment and instead reassigned her to duties outside of the view of customers. Based on these facts, Jennifer has alleged harassment based on her gender identity.

Harasser Was Employer’s Alter Ego. Gina, who is Peruvian-American, alleges that she was harassed because of her national origin by the company Vice President, Walter. The investigation reveals that Walter was the only corporate Vice President in the organization, answering only to the company’s President, and he exercised managerial responsibility over the Respondent’s operations. Based on these facts, given Walter’s high rank within the company and his significant control over the company’s operations, the investigator concludes that Walter was the Respondent’s alter ego, subjecting it to automatic liability for a hostile work environment resulting from his harassment.

Employer Avoids Liability by Establishing Affirmative Defense. Kit files a charge alleging that they were subjected to a hostile work environment by their supervisor because of race. The supervisor’s harassment was not severe at first but grew progressively worse over a period of several months. The employer had an effective anti-harassment policy and procedure, which it prominently displayed on its employee website and provided to all employees through a variety of other means. In addition, the employer was not aware of any harassment by this supervisor in the past. Kit never complained to the employer about the harassment or took any other steps to avoid harm from the harassment. The employer learned of the supervisor’s conduct from Kit’s coworker, who observed the harassment. After learning about it, the employer took immediate corrective action that stopped the harassment. Based on these facts, the employer is not liable for the supervisor’s harassment of Kit, because the employer had an effective policy and procedure and took prompt corrective action upon receiving notice of the harassment and Kit could have used the effective procedure offered by the employer or taken other appropriate steps to avoid further harm from the harassment, but failed to do so.

With the release of this guidance, we encourage employers to readily stay informed. Review the EEOC’s newly proposed guidance and cross-check it with your company’s EEO policies, procedures and employee training. We will also continue to monitor the EEOC’s updates, as well as the courts’ application of EEO laws, to ensure employers stay up to date.