On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) issued a landmark update to its enforcement guidance on workplace harassment—the first in 25 years. This new guidance addresses significant developments in workplace discrimination and harassment, incorporating U.S. Supreme Court precedents that extend anti-discrimination protections to LGBTQ workers.
Historical Context and Legal Framework
The EEOC initially released a draft of this updated guidance in September 2023, following an unsuccessful attempt during the Trump administration. While the guidance does not establish legally binding precedent, it provides a comprehensive legal analysis of standards for harassment and employer liability under the equal employment opportunity (EEO) statutes enforced by the EEOC. This update supersedes several earlier EEOC documents on harassment.
The Scope and Impact of Harassment
Since the Supreme Court’s 1986 ruling that workplace harassment can constitute unlawful discrimination under Title VII of the Civil Rights Act of 1964, harassment has remained a pervasive issue. Over the past five years, harassment claims have accounted for more than one-third of the charges received by the EEOC. The updated guidance offers detailed insights into the three components of a harassment claim: covered bases and causation, discrimination respecting a term, condition, or privilege of employment, and liability.
Covered Bases and Causation
The first section of the new guidance outlines the covered bases for workplace harassment claims and the factors to determine whether specific conduct qualifies as actionable harassment. It provides detailed coverage of the characteristics protected by federal EEO laws, emphasizing the scope of protection.
Key highlights of the guidance include:
- Race Harassment: Protection extends to traits or characteristics linked to a person’s race, including names, cultural dress, accents, speech patterns, and physical characteristics like hair texture and hairstyle.
- National Origin Harassment: Includes traits such as physical characteristics, ancestry, ethnic or cultural characteristics (e.g., attire or diet), and linguistic characteristics (e.g., accents or fluency in English).
- Religious Harassment: Extends to religious stereotypes and requests for or receipt of religious accommodations. This protection includes atheists and those without religious beliefs and addresses coercion to participate in religious practices at work.
- Sex-Based Harassment: Encompasses harassment based on pregnancy, childbirth, related medical conditions, sexual orientation, and gender identity. This includes “outing” someone, misgendering, “dead naming,” and denial of access to gender-consistent facilities.
- Age Harassment: Under the Age Discrimination in Employment Act, harassment includes urging older employees to retire or accept less technologically demanding positions based on stereotypes.
- Disability Harassment: Includes conduct based on disability-related traits, requests for accommodations, incorrect perceptions of disability, past disabilities, or associations with disabled individuals.
- Retaliatory Harassment: Protection against retaliation extends beyond the standard for a hostile work environment, covering any conduct that might deter a reasonable person from engaging in protected activity.
The guidance also recognizes intraclass harassment (harassment within the same protected class) and intersectional harassment (harassment based on multiple protected characteristics or actionable under multiple EEO statutes).
Establishing Causation
To be actionable, harassment must occur because of a statutorily protected characteristic, assessed based on the totality of the circumstances. The guidance identifies several factors to establish causation:
- Explicitly Discriminatory Conduct: Harassment that explicitly insults or threatens based on a protected characteristic is actionable, regardless of the harasser’s intentions.
- Stereotypes: Conduct based on stereotypes, whether positive, negative, or neutral, is prohibited. This includes well-intentioned actions like suggesting retirement to an older employee.
- Contextual Examination: The context of the conduct, such as using racially charged terms, is crucial in determining its harassing nature.
- Facially Neutral Conduct: Neutral conduct related to discriminatory behavior should not be overlooked if sufficiently connected.
- Timing: The onset or worsening of conduct after discovering a protected characteristic can indicate causation.
- Sex-Based Harassment: Factors include proposals for sexual activity, hostility towards a sex, and comparative evidence of differential treatment.
Legal Challenges to the New Guidance
The EEOC’s updated harassment guidance has already sparked significant legal challenges. On May 13, 2024, attorneys general from 18 Republican-led states filed a lawsuit in the U.S. District Court for the Eastern District of Tennessee. The lawsuit aims to block the enforcement of the new guidance, particularly concerning transgender employees.
The states argue that the EEOC overstepped its authority by declaring that existing federal laws provide the protections outlined in the new guidance for transgender employees. They contend that the scope of Title VII of the Civil Rights Act is much narrower than the EEOC’s interpretation. Specifically, they argue:
- Title VII’s Scope: The states claim that while Title VII prevents employers from firing transgender employees based on their transgender status, it does not mandate that employers accommodate transgender employees in other ways.
- Workplace Accommodations: The lawsuit targets the guidance related to bathroom use, gender-segregated facilities, and the use of preferred pronouns. The states argue that these requirements are beyond the scope of Title VII.
- Constitutional Concerns: The states allege that the EEOC’s new guidance violates the Constitutional separation of powers, asserting that such broad interpretations and mandates should come from Congress, not the EEOC.
This legal challenge underscores the contentious nature of the updated guidance and its significant implications for employers and employees across the country. Time will tell whether the litigation results in changes to future enforcement and interpretation of workplace harassment laws.
Conclusion
The EEOC’s updated guidance is not binding law. However, employers should familiarize themselves with these guidelines to better understand their responsibilities and the protections afforded to their employees, and how standards for harassment and employer liability under the equal employment opportunity statutes will enforced by the EEOC. If you have any questions or require assistance, please contact Zana Tomich.
