EEOC Final Workplace Harassment Guidance: Modernized Claims Evaluation, Compliant Anti-Harassment Policies

The EEOC recently released its long-awaited final "Enforcement Guidance on Harassment in the Workplace." The final guidance builds on the proposed guidance issued in the fall of 2023 and supersedes five prior EEOC guidance documents issued from 1987 to 1999.

The final guidance reflects recent case law, social changes, and technological advances that have created a new forum for harassment in the workplace. For example, relying on the U.S. Supreme Court's Bostock v. Clayton County decision, which held that sex-based discrimination includes bias based on sexual orientation or gender identity, the guidance explains that the intentional and repeated use of a name or pronoun inconsistent with the individual's gender identity may constitute harassment. The guidance also demonstrates that conduct occurring in a virtual work environment or on social media may contribute to a hostile work environment and clarifies under what circumstances this may occur.

The final guidance clarifies additional points including what constitutes color-based and associational discrimination and employers' obligations to accommodate employees' sincerely held religious beliefs. Additionally, the final guidance provides an EEOC-approved legal analysis of employee claims and employer liability and offers insight as to what constitutes an effective anti-harassment policy and adequate investigation process in the event of an employee complaint.

Employment law practitioners should understand the latest EEOC guidance to best prepare their clients to update their policies and procedures and to mitigate risk in case of an enforcement action.

Listen as our expert panel guides employment practitioners through the EEOC's final enforcement guidance on workplace harassment. The panel will highlight significant changes from past guidance and describe best practices for compliance.

1. Introduction: history of the final guidance
2. Final EEOC workplace harassment enforcement guidance
   1. Consolidating and superseding past guidance
   2. Evaluating whether alleged harassment violates EEO law
      1. Covered bases and causation
      2. Discrimination with respect to a term, condition, or privilege of employment
      3. Employer liability
   3. Key provisions and updates as to what constitutes harassment
      1. Harassment based on sexual orientation and gender identity
      2. Harassment based on race and color
      3. Harassment claims by employees not the object of harassment
      4. Harassment based on an employee's reproductive health decisions
      5. Social media and virtual workplace activity that constitutes harassment
      6. Other provisions
   4. Dealing with systemic harassment in the workplace
   5. Compliant anti-harassment policies, training, and implementation
   6. Effective workplace investigations
3. Best practices for compliance

The panel will review these and other key considerations:

• In what significant ways has the EEOC's final guidance been updated from past guidance?
• How have recent case law, technological advancements, and social changes affected the EEOC's guidance?
• What is the EEOC-approved legal analysis for determining when workplace conduct constitutes harassment based on a protected characteristic?
• Under what circumstances will the EEOC consider an employer liable for harassment?
• What are best practices for updating employer anti-harassment policies, complaint procedures, and training programs?