On October 2, 2023, the U.S. Equal Employment Opportunity Commission (“EEOC”) published long-anticipated proposed guidance related to workplace harassment. If adopted by the EEOC, the enforcement guidance would supersede four existing EEOC guidance documents issued during the 1990s, as well as a section of the EEOC Compliance Manual on harassment. Members of the public have 30 days from the date of publication to submit comments related to the proposed guidance.

As Proskauer previously covered, the EEOC attempted to publish guidance on workplace harassment over six years ago in January 2017. Now, more than six years later, the EEOC has released proposed workplace harassment guidelines. According to EEOC spokesman Victor Chen, it was approved in a narrow 3-2 vote. Chen also stated, in regards to the delay, that since the previous release of the proposed guidance, “some notable changes in society and the law have occurred, including the #MeToo movement going viral and issuance of new court decisions that required additional updates to the draft guidance.”

The proposed guidance is structured as follows, focusing on the three components of a harassment claim:

Covered Bases and Causation – was the conduct based on the individual’s legally protected characteristic under the federal EEO statutes?

  • This section of the proposed guidance discusses how federal laws, like Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, establish protected characteristics, such as race and color, age (40 or older), and sex (which encompasses pregnancy, childbirth, sexual orientation, and gender identity). It further addresses how harassment based on the perception that an individual has a particular protected characteristic, for example, the belief that a person is of a particular national origin or practices a particular religion, is also covered by federal law even if the perception is incorrect. Furthermore, harassment that is based on the complainant’s protected characteristic is covered, even if the harasser is a member of the same protected class.
  • One notable highlight of this section is a discussion of worker protections against harassment based on sexual orientation and gender identity. The guidance states that this kind of harassment includes conduct like physical assault, but can also include misgendering and denying access to a bathroom consistent with an individual’s gender identity. The guidance elaborates that while the Supreme Court’s decision in Bostock v. Clayton County concerned discrimination, “the Supreme Court’s reasoning in the decision logically extends to claims of harassment” and that “courts have readily found post-Bostock that claims of harassment based on one’s sexual orientation or gender identity are cognizable under Title VII.”

Harassment Resulting in Discrimination with Respect to a Term, Condition, or Privilege of Employment – did the harassing conduct result in discrimination with respect to a term, condition, or privilege of employment?

  • This section of the proposed guidance discusses the two kinds of workplace harassment – “quid pro quo” harassment and hostile work environment. It primarily focuses on the more common hostile work environment theory, and discusses what kind of conduct rises to the level of being “severe or pervasive” enough to establish that a work environment was both objectively and subjectively hostile.
  • The guidance states that to create an objectively hostile work environment under federal law, “conduct need not be both severe and pervasive: [t]he more severe the harassment, the less pervasive it must be, and vice versa, to establish a hostile work environment.” In fact, the guidance advises that a single incident of harassment can result in a hostile work environment.
  • The guidance makes clear that hostile work environment claims may include conduct that occurs in a work-related context outside an employee’s regular workplace. Although employers generally are not responsible for conduct that occurs in a non-work-related context, they may be liable when the conduct has consequences in the workplace and therefore contributes to a hostile work environment. Conduct that can affect the terms and conditions of employment outside of the work-related context, includes electronic communications using private phones, computers, or social media accounts.
  • In some circumstances, an individual who has not personally been subjected to unlawful harassment based on their protected status may be able to file an EEOC charge and a lawsuit alleging that they have been harmed by unlawful harassment of a third party. The EEOC gives an example of an employee whose manager subjects the employee’s coworker to racial harassment, and forces the employee to participate in that harassment. In addition to the coworker, the employee could also file a charge with the EEOC to seek relief for any harm she suffered as a result of having to take part in the harassment.

Liability – is there a basis for holding the employer liable for the conduct?

  • This section of the proposed guidance illustrates the different liability standards depending on who is accused of the harassment – e.g., a proxy of the employer, a supervisor, or a non-supervisory employee.
  • The proposed guidance also details the Farragher-Ellerth affirmative defense, which applies when harassment is by a supervisor and there is no tangible employment action. Through this affirmative defense, an employer can escape liability if the employer exercised reasonable care to prevent and promptly correct any harassment, and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to take other steps to avoid harm from the harassment. This defense is just one reason why it is so important for employers to have up-to-date policies and handbooks, as well as a proper outlet for employees to report harassment.

In addition to the three sections discussed above, the proposed guidance also includes a section on “systemic harassment”, in line with the EEOC’s recent focus on resolving systemic employment discrimination cases. Systemic harassment involves situations where multiple individuals of the same protected characteristic are subjected to a similar form of discrimination. In these sorts of cases where there is a “pattern or practice” of discrimination common to multiple individuals, the employer must adopt a systemic remedy, rather than only address harassment of particular individuals.

The proposed guidance includes many specific examples of conduct that, in the EEOC’s view, would and would not constitute unlawful harassment under the covered laws. The proposed guidance also includes citations to decisions which interpret the covered laws and analyze how the courts applied the law to specific facts. While the EEOC recommends this guidance for employers to research how courts have previously decided harassment issues, it cautions that the document should not be understood to “prejudge the outcome of a specific charge filed with the EEOC.”

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Photo of Evandro Gigante Evandro Gigante

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of…

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of race, gender, national origin, disability and religious discrimination, sexual harassment, wrongful discharge, defamation and breach of contract. Evandro also counsels employers through reductions-in-force and advises clients on restrictive covenant issues, such as confidentiality, non-compete and non-solicit agreements.

With a focus on discrimination and harassment matters, Evandro has extensive experience representing clients before federal and state courts. He has tried cases in court and before arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions.

Photo of Jurate Schwartz Jurate Schwartz

Jurate Schwartz is a senior counsel in the Labor & Employment Law Department. She devotes her practice to counseling clients in employment matters, as well as representing employers in federal and state litigations, arbitrations and administrative proceedings.

Jurate’s practice includes providing advice on…

Jurate Schwartz is a senior counsel in the Labor & Employment Law Department. She devotes her practice to counseling clients in employment matters, as well as representing employers in federal and state litigations, arbitrations and administrative proceedings.

Jurate’s practice includes providing advice on compliance with various laws affecting the workplace, including the FMLA, ADEA, Title VII, ADA, FLSA and similar state and local laws. She counsels clients on developing, implementing and enforcing personnel policies and procedures and reviewing and revising multi-state employee handbooks under federal, state and local laws. Jurate also advises clients on policy and training issues, including discrimination, harassment, retaliation, wage and hour, employee classification, accomodation of religious beliefs, pregnancy and disability, and leaves of absence, including vacation and paid time off policies, multi-state paid sick and safe leave laws and paid family and medical leave laws. Jurate is experienced in conducting wage-and-hour audits under federal and state wage-hour laws and advising clients on classification issues. She also assists clients in drafting employment, independent contractor, consulting and separation agreements as well as various restrictive covenants.

In addition to counseling, Jurate litigates employment disputes of all types, including claims of employment discrimination, harassment, retaliation, whistleblowing, breach of contract, employment-related torts and claims under federal and state wage-and-hour laws. Jurate also assists clients in matters involving trade secrets and non-competes, as well as nonsolicitation, nondisclosure agreements and other restrictive covenants.

Jurate has been ranked by Chambers USA in Florida since 2012. One client comments, “I am a client with extremely high expectations and Proskauer never ceases to exceed them. Jurate has a perfectionist personality and that fits well with how we operate.”

Jurate’s pro bono work includes service on the HR committee of a not-for-profit organization, the YMCA of South Palm Beach County, Florida, and assisting other not-for-profit organizations with employment matters, as well as her successful representation of an unaccompanied immigrant child in an asylum proceeding referred by the National Center for Refugee & Immigrant Children.

Photo of Laura Fant Laura Fant

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns…

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns, with a focus on legal compliance, risk management and mitigation strategies, and workplace culture considerations.

Laura regularly counsels clients across numerous industries on a wide variety of employment matters involving recruitment and hiring, employee leave and reasonable accommodation issues, performance management, and termination of employment . She also advises on preparing, implementing and enforcing employment and separation agreements, employee handbooks and company policies, as well as provides training on topics including discrimination and harassment in the workplace. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog and The Proskauer Brief podcast.

Photo of David Gobel David Gobel

David R Gobel is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

David Gobel earned his J.D at USC Gould School of Law, where he was a Senior Citations Editor of the USC Journal of

David R Gobel is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

David Gobel earned his J.D at USC Gould School of Law, where he was a Senior Citations Editor of the USC Journal of Interdisciplinary Law, and part of the executive committee of USC’s Music Law Society. Prior to law school, David worked as a research executive for a marketing research firm in New York.