A recently proposed update to the EEOC’s workplace harassment guidance provides employers with a window into the agency’s current thinking, especially as it relates to emerging issues in the law.

The proposed guidance also serves as a helpful resource for employers regarding the legal analysis the agency performs when investigating harassment claims and determining potential employer liability.  For example, significant portions of the proposal discuss hostile work environment claims as well as the different standards for determining employer liability in harassment cases.

However, employers should remember this is only proposed guidance, not final.  The EEOC is accepting public comments until November 1 and will likely revise the document in response to those comments.  Even if finalized, however, EEOC guidance is not legally binding on the public, although it does guide the agency’s enforcement efforts.  Courts often view it as helpful, though not legally definitive.  (Just a year ago a federal court struck down EEOC guidance issued in June 2021 regarding sexual orientation and gender identity discrimination.)

Some of the proposal’s more notable contents in regards to emerging issues in the law and the workplace are below:

Virtual or Online Harassment

• Conduct “within a virtual work environment” such as a Zoom call can contribute to a hostile work environment.
• Conduct that occurs away from work, including employees’ posts on social media pages, can constitute unlawful harassment if it impacts the workplace.
• The EEOC noted that it is “increasingly likely” that non-consensual distribution of real or computer-generated intimate images online can contribute to a hostile work environment if it impacts the workplace.

Abortion

• An employee’s reproductive decisions such as the use of contraception or abortion can be the basis of sex-based harassment.

Gender Identity

• Due to the Supreme Court’s 2020 decision in Bostock v. Clayton County holding that Title VII’s ban on sex discrimination encompasses discrimination on the basis of sexual orientation and gender identity, the EEOC’s position is that sex-based harassment likewise includes discrimination based on sexual orientation and gender identity.
• Therefore, intentional and repeated use of a name or pronoun inconsistent with an individual’s preferred gender identity can be the basis of sex-based harassment, as can employers’ denial of access to bathrooms or other sex-segregated facilities.

Bystander Harassment

• Offensive conduct that is directed at third parties of an employee’s same protected class may contribute to a hostile work environment for the employee.
• Such conduct may even occur outside the employee’s presence as long as she becomes aware of the conduct during her employment and it is sufficiently related to her work environment.

Harassment and Religious Expression

• Employers are not required to accommodate religious expression that creates, or reasonably threatens to create, a hostile work environment.
• Employers should take corrective action before any conduct becomes sufficiently severe or pervasive to create a hostile work environment.
• However, the EEOC’s proposal does not address religious employers who qualify for an exemption to Title VII.

Please don’t hesitate to contact the author, Brett Swearingen, or another employment and labor attorney at Miller Johnson if you have additional questions.