An Overview of the EEOC’s Proposed Enforcement Guidance on Workplace Harassment

The United States Equal Employment Opportunity Commission (EEOC) is the federal agency charged with investigating violations of and enforcing compliance with federal anti-discrimination law. It has authority over a wide range of discrimination and harassment claims, including those based on race, color, religion, sex, national origin, disability, age, and genetic information. From time to time, the EEOC issues public guidance explaining its interpretation of federal anti-discrimination law and providing examples of behavior that would and would not violate it. The agency recently released proposed enforcement guidance on workplace harassment that could affect harassment claims against employers. If you believe you have been the victim of workplace harassment in violation of federal law, a Norfolk employment lawyer can help you pursue your claim. 

Purpose of the Updated Guidance 

Workplace harassment is a major concern for the EEOC. The agency claims that between the fiscal years of 2016 and 2022, more than one-third of the charges it received included allegations of harassment. While the agency first proposed guidance on workplace harassment in 2017, that guidance was never finalized. The new proposal is designed to reflect notable changes since then, including the Supreme Court’s decision Bostock v. Clayton County (holding that the Civil Rights Act protects employees against discrimination based on sexual orientation or gender identity), the #MeToo movement, and the proliferation of virtual harassment. The proposed guidance explains the legal standards applicable to harassment claims under the federal laws the EEOC enforces. 

Covered Bases 

Harassment is illegal only if it is based on an employee’s legally protected characteristics. The guidance provides several updated examples of what it believes qualifies as a “protected characteristic,” and it takes a broad view. For example, race-based harassment includes harassment based directly on an employee’s race but also includes harassment based on traits or characteristics associated with an employee’s race, such as their name, cultural dress, accent or manner of speech, physical characteristics, and hairstyle. It also explicitly states that sex-based harassment includes harassment based on pregnancy, childbirth, sexual orientation, and gender identity. 

Clarification of Requirements for Hostile Work Environment Claims 

The guidance notes that even if an employee finds harassment based on a protected characteristic to be subjectively offensive, it does not violate the law unless it is also sufficiently severe or pervasive to create a hostile work environment. 

Severity 

Determining whether harassment is “severe” is not an exact science. However, the guidance provides several examples of conduct that is likely to be considered severe, such as harassment by a supervisor or harassment in the presence of others. The guidance also includes types of harassment that may automatically be considered severe even if they happen only a single time, including: 

• Sexual assault
• Sexual touching of an intimate body part
• Physical violence or threat of physical violence 
• Use of symbols of violence or hatred toward individuals sharing the same protected characteristic
• A threat to deny job benefits for rejecting sexual advances 

For more information about proving that conduct was severe, please contact a Norfolk employment lawyer.

Pervasiveness 

The guidance states that there is no “magic number” of incidents required to demonstrate pervasiveness. However, as a general rule, the less severe an incident is, the more pervasive it needs to be. Relevant considerations include the frequency of the conduct, the relationship between the number of incidents, and the amount of time over which they occurred. 

Subjectively and Objectively Hostile 

To establish that conduct is subjectively hostile, a complainant’s own statement generally is sufficient. However, to establish objective hostility, the complainant must show that a reasonable person in the same position would find the conduct hostile. This determination requires sensitivity to social context. For example, the guidance states that if a black individual alleges racial harassment, the harassment should be evaluated from the perspective of a reasonable black individual. 

Unwelcomeness  

Many courts require plaintiffs in hostile work environment claims to show that the conduct in question was “unwelcome.” However, the updated guidance clarifies that the EEOC does not consider unwelcomeness to be a separate element of such claims. Rather, it states that conduct that is subjectively and objectively hostile is also necessarily unwelcome. 

Liability for Harassment

The guidance also clarifies the circumstances under which an employer may be held liable for harassment by its employees. 

• Proxy or alter ego of the employer: A proxy or alter ego of the employer is an individual with such a high rank that their actions can be said to speak for the employer. This could include sole proprietors, owners, partners, and corporate executives. If the harasser is a proxy or alter ego of the employer, the employer is automatically liable for unlawful harassment. 
• Supervisor: A supervisor is a person who is authorized to take tangible employment actions against the victim. This could include hiring and terminations, failure to promote, demotion, and changes related to compensation or benefits. If a supervisor took a tangible employment action against the complainant, the employer is automatically liable. If the supervisor did not take a tangible employment action against the complainant, the employer may nonetheless be vicariously liable unless it can show that (1) the employer acted reasonably to prevent and promptly correct the harassment, and (2) the complainant unreasonably failed to use the employer’s complaint procedure or take other steps to minimize the harm. 
• Non-supervisors, co-workers, and non-employees: Employers may also be liable for the behavior of individuals outside of supervisory roles if the employer unreasonably failed to prevent the harassment or failed to take reasonable corrective action in response to harassment of which it knew or reasonably should have known. 

Proving employer liability for the acts of employees can often be one of the most challenging aspects of a harassment claim and may require the assistance of a Norfolk employment lawyer. 

Pursue a Harassment Claim With Help From a Norfolk Employment Lawyer 

If you believe you have been the victim of harassment in the workplace, you have options for fighting back. For information, please contact a Norfolk employment lawyer at Pierce Jewett by calling 757-624-9323 or using our online contact form.