On April 29, 2024, the United States Equal Employment Opportunity Commission (EEOC) published its updated guidance on workplace harassment, Enforcement Guidance on Harassment in the Workplace.
The EEOC’s guidance on legal standards and employer liability is intended to assist employers in creating respectful workplaces and help workers feel safe on the job.
KingSpry’s Employment Law Chair, Avery E. Smith, and Employment Law Attorney, Sarah Modrick, provide employers a comprehensive review of the EEOC’s update and offer guidance as to how employers can ensure compliance.
Addressing the Need for Updated Guidance
Federal employment discrimination laws are enforced by the EEOC to protect covered employees from harassment based upon race, color, religion, sex, sexual orientation, gender, national origin, disability, age, or genetic information.
Since the EEOC last offered guidance on its regulations, legal developments have occurred. Notably, in Bostock v. Clayton County Ga., 140 S. Ct. 1731 (2020), the United States Supreme Court determined that Title VII protects employees from discrimination based upon their sex, which includes discrimination on the basis of sexual orientation and gender identity.
The EEOC has also identified new issues, such as online harassment in virtual work environments. As such, the EEOC consolidated and replaced its guidance published between 1987 and 1999 with one, unified agency resource.
“Harassment, both in-person and online, remains a serious issue in America’s workplaces. The EEOC’s updated guidance on harassment is a comprehensive resource that brings together best practices for preventing and remedying harassment and clarifies recent developments in the law.” -EEOC Chair, Charlotte A. Burrows
EEO Laws
Equal Employment Opportunity (EEO) laws are those that prohibit specific types of job discrimination. EEO laws include: the Age Discrimination in Employment Act of 1967 (ADEA), Titles I and V of the Americans with Disabilities Act of 1990 (ADA), the Equal Pay Act of 1963 (EPA), Sections 501 and 505 of the Rehabilitation Act of 1973, and Title VII of the Civil Rights Act of 1964 (Title VII).
A detailed review of the EEOC’s updated guidance on these laws is presented below.
Covered Bases
Harassment is only covered by EEO laws if it is based on one or more of the individual’s legally protected characteristics. Legally protected characteristics include: race, color, national origin, religion, sex (including pregnancy, childbirth, or related conditions, and sexual orientation and gender identity), age, disability, genetic information, retaliation, and cross-bases issues.
Causation
Generally, causation is established if evidence shows that the complainant was subjected to harassment because of their legally protected characteristic(s). If the complainant cannot prove that the alleged harassment was linked directly to their legally protected characteristic(s), they cannot establish a claim under EEO laws.
Another factor to consider is timing. If harassment began or escalated around the time the harasser learned of the complainant’s protected status, the timing may suggest that the harassment was discriminatory.
Employers and/or appropriate human resources personnel should follow policies that prevent harassment before it occurs. In circumstances in which harassment is not prevented, employers should keep a detailed timeline of the allegations and retain any relevant documents.
Harassment Resulting in Discrimination
For workplace harassment to violate the law, it must be based upon a legally protected characteristic, and it must affect a “term, condition, or privilege” of employment.
In Meritor Savings Bank, FSB v. Vinson, the Supreme Court defined two (2) examples of unlawful harassment: (1) an explicit change to the terms or conditions of employment that is linked to harassment based on a protected characteristic (such as firing an employee die to rejection of sexual advances), and (2) conduct that constructively changes the terms or conditions of employment through creation of a hostile work environment.
The EEOC clarifies that the EEO laws are not limited to only discriminatory conduct that has tangible or economic effects; rather, the laws “strike at the entire spectrum of disparate treatment.”
Employers should review the EEOC’s guidance and examples pertaining to unlawful harassment to ensure they do not violate their employees’ rights when changing employment agreements or conditions.
Liability
Once a complainant has established that their employer has committed unlawful harassment, the employer is liable and has no defense, as determined in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 760-62 (1998).
The EEOC clarifies that the liability standard for a hostile work environment claim differs. Liability for such claims depends on whether the harasser is a (1) proxy or alter ego of the employer, (2) supervisor, or (3) non-supervisory employee, coworker, or non-employee.
Employers should discuss with their legal counsel the different standards of liability in harassment cases. By understanding potential liability, employers can reassess employment practices and policies with the intention of preventing harassment before it occurs.
Systemic Harassment
The EEOC has determined that like other forms of discrimination, harassment can be systemic and impact multiple individuals. If evidence proves that widespread harassment is present in the workplace, complainants may also establish a hostile work environment claim.
A hostile work environment encompasses several things, such as: physical or sexual assaults or threats; offensive jokes, slurs, epithets, or name calling; intimidation, bullying, ridicule, or mockery; insults or put-downs; ostracism; offensive objects or pictures; and interference with work performance.
Should a company be found or alleged to have cultivated systemic harassment in the workplace, prevention and/or corrective measures must be taken to fully address the nature and scope of the harassment. Further, if an employer is aware of frequent individual incidents of harassment, they must take action to determine whether said incidents reflect a wider issue of systemic harassment.
Key Takeaways for Employers
The EEOC’s updated guidance took effect on April 29, 2024. It is recommended that employers assign a business executive or administrator to review the EEOC’s Enforcement Guidance on Harassment in the Workplace and determine whether their business or employees are engaging in prohibited behavior.
Employers should never avoid addressing workplace harassment. Human Resources departments and appropriate personnel should be well-versed in company policies to protect employees from harassment and discrimination. When allegations arise, each incident should be investigated fully.
If employers have questions regarding the legality of their business and employment practices, or about the EEOC’s updated guidance on workplace harassment, KingSpry’s Employment Law Team is prepared to assist you. Contact your legal counsel or a KingSpry attorney today.
