The Equal Employment Opportunity Commission (EEOC) has issued updated guidelines pertaining to workplace harassment claims. This is the first update of the harassment guidelines since 1999.
To successfully establish a prima facie case of workplace harassment, an individual must first show that the harassment was based on a protected characteristic. The protected characteristics with which the EEOC covers include race, color, religion, sex, national origin, disability, age, and genetic information.
The EEOC has clarified that a harasser can be in the same protected class as the victim. For example, a Black employee who harasses another Black employee because of race has engaged in “interclass harassment.”
Sexual orientation and gender identity are protected characteristics encompassed by the term “sex.” Examples of sexual orientation and gender identity harassment identified in the Guidelines include; disclosure of an individual’s sexual orientation or gender identity without permission (“outing”); asking intrusive and personal questions about a person’s sexual orientation or gender identity; purposeful misgendering of individuals through the use of incorrect pronouns or names; or, denial of access to bathrooms, or other sex-segregated facilities.
“Sex” also includes pregnancy-based harassment. The new Guidelines are consistent with the EEOC’s Final Guidelines on the Pregnant Worker’s Fairness Act (PWFA), issued on April 19, 2024. The EEOC illustrated an example of a worker who received telework accommodations due to pregnancy-related morning sickness. Under the Guidelines, a coworker’s negative comments about the pregnant-worker’s accommodations would be considered sex-based discrimination.
Furthermore, harassment can be based on multiple protected characteristics. In such a scenario, more than one statute may apply. For example, if a woman over the age of 40 was the victim of sex-based and age-based discrimination, both Title VII and the ADEA apply. The EEOC refers to such a scenario as “intersectional harassment.”
Next, an individual subject to workplace harassment can show that the harassment involved a tangible employment action (such as being fired, demoted, or denied of a promotion or transfer, etc.). Or, an individual may demonstrate the existence of a “hostile work environment.”
A hostile work environment is created when the harassment is so severe or pervasive, that a reasonable person would find the work situation to be abusive. A victim of a hostile work environment does not need to show that the conduct was severe and pervasive if the conduct was sufficiently severe or pervasive. This is an objective standard.
Severity is a sliding scale, with the most severe type of conduct being physically threating, inappropriate touching, and use of slurs. A harasser’s position within an organization may be relevant when determining the severity of conduct. If the harasser is a supervisor or manager, conduct may be more serious than a typical coworker because of the power dynamic at play.
A singular incident can be deemed sufficient to satisfy the “severe or pervasive” requirement if it is objectively serious enough.
Third, the individual must establish that the harassing conduct was unwelcome. Unwelcomeness is presumed in most racial harassment cases.
Sexual harassment cases can be more difficult when victims do not clearly and promptly object to harassing behavior. However, in wake of the “#MeToo” movement, courts are now more likely to find certain conduct unwelcome.
Additionally, the victim must show that the employer can be held legally liable for the workplace harassment. Employers have a responsibility to prevent workplace harassment by all their employees.
Employers have a duty to promptly end any harassing behavior they know about. This duty exists whether the employer learns about the harassment via a direct complaint from an employee, a supervisor/manager witnesses the harassing behavior themselves, or if the harassing conduct was open and obvious.
The Guidelines end with key suggestions for employers to prevent future harassment. Implementing these suggestions will not shield employers from liability, but they will help prevent future instances of workplace harassment.
The EEOC guidelines state that employers should:
- Have a clear and easy-to-understand anti-harassment policy;
- Have a safe and effect procedure for reporting harassing behavior (including more than one option for reporting);
- Provide reoccurring anti-harassment and complaint procedure training to all employees;
- Ensure supervisors and managers are aware of company anti-harassment and complaint policies;
- Take active steps to ensure the anti-harassment policy is being followed;
- Thoroughly and promptly investigate any allegation of harassment;
- Consider if there are employees who experience barriers to understanding policies (e.g. non-English speakers, etc.), and ensure they are properly accommodated.
Written by Christina Charikofsky. Christina is a summer associate at Kollman & Saucier and a rising third-year student at the University of Baltimore School of Law.