[2].2406022320233.png)
On April 29, 2024, the United States Equal Employment Opportunity Commission (“EEOC”) released its first Enforcement Guidance on Harassment in the Workplace in more than 25 years.
In explaining how to evaluate whether harassment violates federal EEO law, the new enforcement guidance focuses on the three components of a harassment claim. Each of these must be satisfied for harassment to be unlawful under federal EEO laws:
Covered Bases and Causation. Was the harassing conduct based on the individual’s legally protected characteristic under the federal EEO statutes?
Discrimination with Respect to an Employment Term, Condition, or Privilege. Did the harassing conduct constitute or result in discrimination with respect to a term, condition, or privilege of employment?
Liability. Is there a basis for holding the employer liable for the conduct?
This Guidance also addresses systemic harassment and provides links to other EEOC harassment-related resources.
The Guidance describes the EEOC’s perceptions of unlawful harassment with more than 70 illustrative examples of workplace behavior, as well as about 400 footnotes citing to various cases as support. Included in this is the agency’s explanation of the type of conduct that it sees as workplace harassment based on the following:
Sexual orientation;
Gender identity;
Pregnancy; and
Pregnancy-related medical conditions.
The EEOC says that the Guidance is to serve as a resource for employers, employees, and practitioners; for EEOC staff and the staff of other agencies that investigate, adjudicate, or litigate harassment claims or conduct outreach on the topic of workplace harassment; and for courts deciding harassment issues.
Here are a number of highlights of which California employers should be aware:
Sexual Orientation and Gender Identity
Sex-based discrimination under Title VII includes employment discrimination based on sexual orientation or gender identity. As such, sex-based harassment includes harassment based on sexual orientation or gender identity, including how that identity is expressed. The agency states that harassing conduct based on sexual orientation or gender identity includes the following:
Epithets regarding sexual orientation or gender identity;
Physical assault due to sexual orientation or gender identity;
Outing (disclosure of an individual’s sexual orientation or gender identity without permission);
Harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex;
Repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or
The denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.
Pregnancy and Related Medical Conditions
The Guidance explains that sex-based harassment under Title VII includes harassment based on pregnancy, childbirth, or related medical conditions. It can include issues such as:
lactation;
using or not using contraception; or
deciding to have, or not to have, an abortion.
Harassment based on these issues generally would be covered if it’s connected to a targeted individual’s sex including pregnancy, childbirth, or related medical conditions. One example is morning sickness.
Disability
The Americans with Disabilities Act (ADA) prohibits employment discrimination, including unlawful harassment, based on an individual’s physical or mental disability, including harassment based on stereotypes about individuals with disabilities in general or about an individual’s particular disability. Thee EEOC explains that it also can include harassment based on traits or characteristics linked to an individual’s disability, such as how an individual speaks, looks, or moves. Moreover, disability-based harassment also includes:
Harassment because of a person’s request for, or receipt of, reasonable accommodation;
Harassment because a person is regarded as having an impairment, even if the individual does not have an actual disability, or a record of disability, under the ADA;
Harassment because a person has a record of a disability, even if the individual currently does not have a disability; and
Harassment based on the disability of a person with whom they’re associated.
Genetic Information
The Genetic Information Nondiscrimination Act (GINA) prohibits employment discrimination, including unlawful harassment, on the basis of genetic information. This includes harassment based on an individual’s, or an individual’s family member’s, genetic test or on the basis of an individual’s family medical history.
Harassment in a Remote Workplace
The EEOC says that conduct also must be assessed in the context of the specific work environment in which it happened. For example, in some instances, conduct may be more likely to create a hostile work environment if the complainant works in a remote location alone with the harasser. The Guidance also notes:
Conduct also occurs within the work environment if it is conveyed using work-related communications systems, accounts, devices, or platforms, such as an employer’s email system, electronic bulletin board, instant message system, videoconferencing technology, intranet, public website, official social media accounts, or other equivalent services or technologies. As with a physical work environment, conduct within a virtual work environment can contribute to a hostile work environment.
This can include sexist comments made during a video meeting, ageist or ableist comments typed in a group chat, racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting, or sexual comments made during a video meeting about a bed being near an employee in the video image.
In addition, conduct that can affect the terms and conditions of employment, even if it doesn’t happen in a work-related context, includes the use of electronic communications using private phones, computers, or social media accounts, if it impacts the workplace. However, the agency states that postings on a social media account generally will not, standing alone, contribute to a hostile work environment if they don’t target the employer or its employees.
Summary
This new EEOC Guidance doesn’t dramatically change the rules and obligations for California employers.
California’s Fair Employment and Housing Act already specifically sets out as protected categories, gender (including pregnancy, childbirth, breastfeeding or related medical conditions), sexual orientation, gender identity, and gender expression. In addition, California’s Civil Rights Division already issued its own Guidance for Employers on Transgender Rights in the Workplace.
However, the EEOC Guidance provides worthwhile examples for employers in determining the types of comments and actions that may constitute harassment in the workplace.