The U.S. Equal Employment Opportunity Commission (EEOC) in April 2024 issued new enforcement guidance on harassment in the workplace, its first guidance on this subject in 25 years, superseding five earlier documents from the 1980s and 1990s.  The new guidance accounts for the changing times, including the #MeToo and Black Lives Matter movements, the Supreme Court’s decision in Bostock v. Clayton County, and the COVID-19 pandemic, and presents a comprehensive summary of the legal standards for harassment claims.  The guidance, which is effective immediately and will be referenced by EEOC staff in determining whether to investigate and ultimately litigate allegations of discrimination, provides a helpful roadmap for employers’ efforts to prevent and correct workplace harassment.  As further explained below, however, it is already being challenged.

Key Takeaways from the EEOC’s Workplace Harassment Guidance

• Protections for LGBTQ+ Employees and Decisions Related to Pregnancy.  The guidance addresses the Supreme Court’s 2020 ruling in Bostock v. Clayton County, which established that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of gender identity and sexual orientation.  The EEOC provides several examples of illegal harassment based on these protected characteristics, including “outing” an employee’s sexual orientation or gender identity without their permission, repeatedly and intentionally using the wrong pronouns, and denying an employee access to a bathroom consistent with their gender identity.  The guidance also explains that sex-based harassment under Title VII includes harassment based on pregnancy, childbirth, or other related medical conditions including lactation, abortion, and contraceptive choices.  For example, the guidance provides that harassing an employee because of her morning sickness or mocking an employee’s decision to breastfeed could violate Title VII.  This is in line with the EEOC’s recent final rule implementing the Pregnant Worker Fairness Act, which clarifies the accommodations required for pregnant workers.
• Harassment in the Remote Work Setting and on Social Media.  Given the rise in remote work since the COVID-19 pandemic, the guidance addresses when virtual conduct constitutes harassment and explains that conduct conveyed over work-related systems or devices—including email, group chats, or video meetings—can contribute to a hostile work environment.  For example, racist imagery visible in a worker’s Zoom background could give rise to a harassment claim, as could sexual comments about an employee’s bed visible on camera during a video call.  This is also the first EEOC harassment guidance to address social media.  According to the EEOC, although posts on social media standing alone generally will not support a workplace harassment claim, social media posts could contribute to a hostile work environment if the post targets a particular employee or if coworkers discuss the post at work.
• Intersectional and Intraclass Harassment.  The new document for the first time addresses the concept of “intersectional harassment,” or harassment based on two or more protected characteristics.  For example, the EEOC explains that if an employee harasses a coworker by making comments based on stereotypes about Black women, the harassment is both race and sex discrimination.  The guidance also notes that the EEOC-enforced laws protect against “intraclass” harassment, or harassment where the harasser is in the same protected category as the victim.  For example, sex-based harassment could include a woman asking a woman co-worker, “shouldn’t you stay at home with your kids?” 
• New Examples of Race-Based Harassment.  The EEOC includes new examples of conduct that could support a claim of race-based harassment.  For example, the agency explains that trying to touch a Black employee’s hair, criticizing a Black employee’s natural hair as “untamed” or “unprofessional,” or asking, “why does Black people’s hair look like that?” could support a claim for race-based harassment.  The new guidance also notes that examples of race-based harassing conduct could include harassment based on racial stereotypes or traits like the individual’s name, cultural dress, accent, or manner of speech. 
• Examples and Resources.  The new guidance includes several helpful resources for employers, including 77 practical “Examples” with the EEOC’s bottom-line conclusion as to whether the conduct could rise to unlawful harassment, as well as lists of features that employers should include in their anti-harassment policies, trainings, and complaint processes.  Along with the new guidance, the EEOC also issued a Q&A document, a summary of the guidance’s key provisions, and a fact sheet for small businesses.

Legal Challenges to the Guidance

On May 13th, a coalition of 18 states filed a lawsuit challenging the harassment guidance.  (See State of Tennessee et al. v. Equal Employment Opportunity Commission et al., No. 3:24-cv-00224 (E.D. Tenn. May 13, 2024)).  The states argue that the EEOC’s guidance goes beyond the Supreme Court’s decision in Bostock and unlawfully expands the scope of Title VII’s protections for transgender workers, and note that the same district court already issued a preliminary injunction in 2022 blocking similar EEOC guidance on gender pronouns and sex-segregated spaces.  The lawsuit also alleges that the guidance violates the First Amendment’s protection of free speech and religious liberty by requiring employers and employees to use certain pronouns even if doing so is contrary to their religious beliefs.  Notably, the EEOC endeavored to address similar concerns in the final guidance by including a statement that “[t]he Commission acknowledges that in some cases, the application of the EEO statutes enforced by the EEOC may implicate other rights or requirements including those under the United States Constitution . . . When the Commission is presented with individualized facts in an EEOC administrative harassment charge, the agency works with great care to analyze the interaction of Title VII harassment law and the rights to free speech and free exercise of religion.” 

Practical Tips for Employers

In order to mitigate risk, avoid litigation, and promote a positive and inclusive work environment, employers should carefully review the new guidance, including the EEOC’s list of best practices, and review and update their policies, procedures, and trainings to ensure the content is current and relevant. 

In particular, given the EEOC’s focus in the guidance on LGBTQ+ individuals and pregnancy—and recent case law[1]—employers should update policies and trainings to clearly prohibit harassment on the basis of sexual orientation, gender identity, gender expression, as well as pregnancy-related circumstances.  For example, consider adding to anti-harassment policies and trainings examples of prohibited conduct on these bases, such as denying employees use of a restroom consistent with their gender identity, intentionally misgendering employees, or harassing an employee about their contraceptive or other reproductive choices.    

Employers with remote or hybrid workers should also consider updating policies and trainings to address conduct in the virtual work environment, and could include examples of prohibited conduct like displaying inappropriate images in the background during video calls. 

As always, because even the best policies and training content will not establish a defense to a harassment claim if the employer does not properly implement them, employers should prioritize training for all employees and ensure that supervisors and managers know how to effectively and promptly respond to concerning behavior.   

[1] For example, the Eleventh Circuit ruled in March 2024 that a transgender plaintiff could proceed on his Title VII harassment claim based in part on persistent misgendering by coworkers.  See Copeland v. Georgia Department of Corrections, 97 F.4th 766 (11th Cir. 2024).