The U.S. Equal Employment Opportunity Commission (EEOC) recently released proposed guidance on workplace harassment prohibited under federal law. The new guidance, posted on September 29, 2023, is available for public review and commentary until November 1, 2023. If finalized, this guidance will supersede five longstanding guidance documents issued from 1987 through 1999. In other words, this is the first proposed EEOC guidance on harassment in the past 25 years.

The Context

An agency press release notes that the EEOC last attempted to update its workplace harassment guidance in 2017 – amidst the #MeToo movement – but that effort stalled and the proposal was never finalized. The EEOC’s new proposed guidance offers insight to the agency’s priorities for implementation of the various Equal Employment Opportunity (EEO) laws under its purview, especially when read in connection with the recently released draft of its four-year Strategic Enforcement Plan (SEP), issued on September 21, 2023.

The draft SEP advises that the EEOC’s overall substantive enforcement priorities will include i) targeting recruitment and hiring practices (including technology-assisted talent acquisition), ii) expanding outreach to “vulnerable” workers, such as individuals needing certain accommodations, iii) prioritizing issues brought on by recent events (such as the 2020 COVID-19 pandemic and the 2023 implementation of the Pregnant Workers Fairness Act), iv) promoting equal pay, v) regulating restrictive covenants in employment-related agreements, and vi) preventing and remedying systemic workplace harassment.

The updates to the proposed harassment guidance, if finalized, will align with the SEP agenda by outlining the legal standards for harassment and employer liability thereunder. The proposed guidance also purports to consolidate multiple EEOC publications that advise on various aspects of EEO compliance, particularly with respect to Title VII of the Civil Rights Act of 1964 (“Title VII”).

Highlights of the New Proposed Guidance

Acknowledging that social media and online activity continue to influence workplaces and that the recent growth of hybrid and remote work cultures has reshaped many employment relationships, the EEOC’s proposed guidance includes information about digital or virtual harassment. It also reflects legal developments, including the 2020 decision in Bostock v. Clayton County, Georgia, wherein the U.S. Supreme Court held that discrimination on the basis of a person’s gender or sexual orientation is a violation under Title VII.

The proposed guidance reflects these developments and combines it with various prior guidance materials, organizing its advice into a single, lengthy document. The proposed guidance sets forth, among other items, the following:

  1. the bases of discrimination (protected characteristics) prohibited by laws subject to the EEOC’s authority and the legal analysis required to establish causation;
  2. the EEOC’s explanation of its legal definition of workplace harassment that qualifies as unlawful discrimination, including hostile work environment claims; and
  3. ways in which employer liability may attach – whether automatically or vicariously – in cases of discriminatory harassment.

What to Expect

The EEOC is accepting public comments on its draft SEP until February 9, 2024. The window of opportunity to submit comments on the proposed harassment guidance is much shorter, however, ending on November 1, 2023 — barely a month after opening. As of this posting, fewer than 400 comments have been submitted, suggesting that the substance of the proposed guidance has not sparked much controversy and is likely to be adopted in 2024. While such guidance may not have the same force of law as do formal regulations, employers can expect agency investigators to rely on the new guidance. We will be monitoring the EEOC for updates on the status of this guidance and other enforcement-related news to help employers remain compliant.

* America Garza, a Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this post.

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