EEOC Proposed Enforcement Guidance on Workplace Harassment: Modernizing Evaluation of Claims and Employer Liability

On Sept. 29, 2023, the EEOC released its long-awaited "Proposed Enforcement Guidance on Harassment in the Workplace." This is the first guidance the EEOC has issued on workplace harassment since 1999 that will consolidate and supersede several prior EEOC guidance documents, bringing the agency's enforcement guidance into the 21st century.

Workplace harassment accounts for more than one-third of the charges filed with the EEOC between fiscal years 2016 and 2022. Therefore, the EEOC will continue to step up its enforcement activity. Counsel should understand the latest guidance to best prepare their clients to update their policies and procedures and to mitigate risk in case of an enforcement action.

The draft guidance reflects changes in the law, addresses issues arising from the #MeToo movement, and technological changes that have created a new forum for harassment in the workplace. For example, the guidance incorporates 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, by stating 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.

The draft guidance provides an EEOC-approved legal analysis of employee claims and employer liability. The guidance also offers insight as to what constitutes an effective anti-harassment policy and adequate investigation process in the event of an employee complaint.

Listen as our expert panel guides employment practitioners through the EEOC's draft guidance. The panel will highlight significant changes and describe best practices for compliance.

1. Introduction: history of the proposed guidance
2. Proposed 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 the harassment
      4. Harassment based on a woman's reproductive decisions
      5. Other provisions
      6. Social media and virtual workplace activity that constitutes harassment
   4. Dealing with systemic harassment in the workplace
   5. Effective anti-harassment policies, training, and implementation
   6. Adequate workplace investigations
3. Best practices for compliance
4. EEOC next steps for finalizing the guidance

The panel will review these and other important issues:

• In what significant ways has the EEOC's draft guidance been updated?
• How have recent case law, technological advancements, and social movements 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 harassment policies, procedures, and training programs?