As every employer in America is likely aware, the U.S. Equal Employment Opportunity Commission (EEOC), is the federal body responsible for enforcing laws that prohibit job discrimination and harassment.  In addition to investigating complaints of job discrimination and harassment, from time to time the EEOC issues formal guidance to set forth its policies and to discuss how federal laws and regulations may apply in specific situations.  Recently, the EEOC published a proposal to update its Enforcement Guidance on Harassment in the Workplace.  While not yet adopted, this proposal is notable because if it is adopted, it will mark the first guidance on harassment issued by the EEOC in over 30 years, and will be in place in the first quarter of 2024.

The EEOC’s Proposed Enforcement Guidance on Harassment in the Workplace is not intended to change any laws, and even if adopted, it will not have this effect.  As EEOC Chair Charlotte Burrows stated in the press release that accompanied the publication of the proposed guidance, “Preventing and addressing harassment in America’s workplaces has long been a key priority for the EEOC, and this guidance will provide clarity on new developments in the law and build in the Commission’s previous work.”

These are complicated times for those in the private sector. From the burgeoning relevance of gender identities to running a workplace that functions primarily online, it may be difficult for companies to know which of their processes may require updating.  Here is what employers should know about the proposed guidance to make sure their policies are compliant with modern standards:

Sex-Based Harassment

The EEOC has clarified its views on sex-based harassment to encompass any harassment based on a woman’s reproductive decisions. They have also set expectations for employers regarding transgender and non-binary individuals. The EEOC considers it to be harassment to intentionally misgender (such as referring to a transgender woman as “him”) or likewise deny that person access to a restroom or other sex-segregated areas that are consistent with their gender identity. In other words, whatever gender an employee identifies with, that is how they must be treated.

Online Harassment

Due to the increase of remote work largely due to the COVID-19 pandemic, more work is taking place virtually than ever before. Because of this, the EEOC felt it essential to provide additional guidance for inappropriate conduct that occurs digitally.

The EEOC considers harassment occurring in electronic communications (both company-owned and private) to be valid factors that can contribute to a hostile work environment. Not only does this include unwelcome sexual advances made virtually or through text (like non-consensual private photos or computer-doctored images), but it also includes offensive social media posts that make an employee feel unwelcome.

For example, if a supervisor posts discriminatory comments online that can be construed as hostile to certain employees — even if the comment is made from the supervisor’s personal account — it can still be considered a form of workplace harassment. Simply put, if online after-hours conduct has the potential to create a hostile work environment, it may be sufficient to warrant an EEOC investigation — the results of which could hold the employer liable.

“Objective” and “Reasonable”

Previous guidance has stated that EEOC investigations needed to prove that the harassment in question was “objectively” hostile as considered by a “reasonable” person. The EEOC furthered that notion by clarifying that a reasonable person only refers to someone who is a part of the complainant’s same protected class.

Liability

A large portion of the EEOC’s proposed new guidance focuses on the myriad of ways employers may be held liable for the conduct of their employees. One significant way an employer may fall short is in their official anti-harassment policies. These policies should be thorough and easy to understand by every employee. For example, if an employee does not speak English, the employer can be held liable for harassment instigated by that employee unless the employer has provided their anti-harassment policies in the employee’s native language.

Companies can also be held liable when an employee feels their harassment is being incited by a person with supervisory authority over them (and thus capable of punishing or firing the complainant). Even if the offending employee doesn’t have that authority, companies can still be held liable for creating that appearance.

If harassment is reported to a supervisor, the actions or inactions of the supervisor could also lead to employer liability. Companies must be able to prove that reasonable corrective actions were taken in response to a harassment complaint. Failure to do this may result in the employer losing the right to certain defenses during the EEOC’s investigation.

What Can Employers Do Now?

To discuss how your company can mitigate its risk or retain an experienced employment attorney for a potential EEOC investigation, contact Carol Harding at Earp Cohn. Carol represents businesses, public entities, and individuals in employment-related matters. In addition to her litigation experience, she focuses on evaluating her clients’ policies and procedures to avoid future legal liability.