Hunton Employment & Labor Perspectives

The U.S. Equal Employment Opportunity Commission (“EEOC”) published proposed enforcement guidance for workplace harassment for public comment on October 2, 2023. The proposed guidance can be found on the EEOC’s website. While the EEOC attempted to provide updated harassment guidance under the Trump administration in 2017, final guidance was never issued and if this new guidance is finalized it would represent the first time the EEOC has updated its workplace harassment guidance in nearly a quarter century.

There have been some significant changes in federal law over that time period and this proposed guidance reflects those changes. Two recent Supreme Court cases feature prominently in the newly proposed enforcement guidance: Bostock v. Clayton County and Dobbs v. Jackson Women’s Health Organization. In Bostock, the Supreme Court held that Title VII of the Civil Rights Act of 1964 bars discrimination against gay or transgender employees. In Dobbs, the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey, generally returning to the individual states the power to regulate abortions.

The proposed guidance broadens the protected bases that can form the foundation for unlawful harassment. The EEOC has proposed that harassment be prohibited based on employees’ decisions related to contraception, abortion, and lactation. Additionally, sex-based harassment is proposed to be extended to cover harassment based on employees’ sexual orientation or gender identity. The proposed guidance expands the definitions of disability, age, religion, national origin, race and color to include harassment based on stereotypes of individuals belonging to those groups.

Some key takeaways from this guidance include:

• Hostile work environments can occur in virtual workplaces, for instance, sexist comments made during a video meeting;

• If the harasser is a proxy or alter ego of the employer, an employer is automatically liable for the harasser’s conduct and has no defense to liability;

• If the harasser is any person other than a proxy, alter ego, or supervisor, an employer is liable for the harasser’s conduct if the employer was negligent in failing to act to prevent the harassment or taking reasonable corrective action in response to the harassment when the employer was aware or should have been aware; and

• An employer may be responsible for non-work related conduct to the extent it has consequences in the workplace, for example if an African-American employee is subjected to racist slurs by white coworkers outside of work, the presence of those same coworkers in the employee’s workplace can result in a hostile work environment.

The notice and comment period for the proposed enforcement guidance closes on November 1, 2023, and employers should pay close attention to what formal guidance potentially follows. As the proposed guidance currently stands, the EEOC is poised to significantly expand its interpretation of unlawful harassment, potentially creating additional liability for employers.