The U.S. Equal Employment Opportunity Commission (EEOC) recently proposed updated guidelines for preventing workplace harassment. On October 2nd, the proposal was published and opened for public comment (until November 1st, 2023). This blog post seeks to explain what notable changes the proposed new guidelines include and how these guidelines might impact harassment claims and EEOC complaints, should the proposal be issued.
Understanding the EEOC’s Proposed Updates
Here are some of the significant provisions in the proposed guidelines:
The definition of sexual harassment is broadened. Under the new guidelines, sexual harassment will include pregnancy, childbirth, and other “related medical conditions, including lactation.” The EEOC will also recognize harassment about reproductive decisions (i.e. abortion, use of contraceptives, etc.) as sex-based harassment. To address the Supreme Court decision in Bostock v. Clayton County (2020), sexual harassment will also include harassment based on someone’s gender identity or sexual orientation. Misgendering someone or denying them access to bathrooms, locker rooms, or other sex-segregated areas that align with the person’s gender identity are sex-based harassment.
Religious expressions that create or threaten to create a hostile environment do not have to be accommodated. Under the proposal, there will be “special consideration” given in cases that involve accommodation for religious expression. While they should make certain accommodations if there is no undue hardship, employers would not be required to make accommodations if the workplace would become a hostile space for others.
Misconduct complaints will be evaluated based on context. The new guidelines will allow context to be taken into consideration when evaluating a person’s conduct. The example the EEOC uses in the proposal acknowledges that calling a Black man “boy” can be racially hostile because of the historical usage, tone of voice, and local customs.
Harassment complaints can be brought forward even if the conduct was not directed at the complainant. For example, let’s say Mary files a claim that Paul is creating a hostile work environment for women. In this scenario, Mary is an Assistant Editor and manages four Editors (all of whom are women). Paul is the Managing Editor and Mary’s direct superior. During her tenure in the editing department, Paul has referred to Mary’s subordinates as “b—s,” told co-workers that female editors are too hysterical and sensitive to edit certain genre-specific content, and asked their Magazine Director to stop hiring women for Mary’s team. If these comments occurred in front of Mary or the comments were shared with her secondhand, Paul’s conduct would be considered to have created a hostile work environment for Mary even though the conduct was not directed at her.
A person’s ability to continue performing well does not negate their claim that they experienced a hostile work environment. Claimants will only need to establish that the other party’s conduct was so “severe or pervasive” that a reasonable person in the same position would find it hard to do their job in the face of such conditions. It is also important to note that harassment would be actionable without the claimant having a psychological injury.
People can file an EEOC charge if they have suffered because of the harassment of a third party. For instance, Sarah is forced by a superior to harass a co-worker by hiding their files, inviting them to meetings during scheduled lactation times, or other harmful acts. While she tried to refuse, her superior threatened her job, so Sarah engaged in the harassment. Both Sarah and the co-worker can file claims.
Virtual harassment is clearly acknowledged. The new guidelines aim to validate that harassment can occur online or virtually, especially with so many employees working remotely now. Actions taken in the virtual work environment that contribute to a hostile work environment will be considered by investigators.
Conduct outside of the workplace is acknowledged as having the potential to create a hostile work environment. If an employee posts content online that harasses or discriminates against a co-worker and that co-worker finds out about the posts, the posts create a hostile work environment. Even if the employee made the post using their personal computer or phone, they can face consequences. It is also important to note that physical acts that occur outside of the office can still be seen as impacting a person’s work environment. The EEOC used the following example: a white employee yells slurs at and physically attacks their Black co-worker while on a city street. As the two work together, the Black employee is in a hostile work environment.
The Significance of the New Guidelines for Employers & Employees
Employers should take particular note of these guidelines, as the EEOC has also included proactive suggestions for employers concerning how to develop and implement policies and procedures concerning anti-harassment. Specifically, they outline what policies, trainings, processes, and programs would prove that they took reasonable action to prevent harassment.
For employees, these guidelines represent a significant step towards securing a safer, more equitable workplace. They ensure that all forms of harassment, including those based on sex, pregnancy, childbirth, and LGBTQ+ status, are recognized and addressed. These proposed guidelines also reinforce the EEOC's commitment to protecting employees' rights, thereby empowering them to voice their concerns.
Federal EEOC & Sexual Harassment Attorneys
At The Law Firm of John P. Mahoney, Esq., Attorneys at Law, PLLC, our firm is committed to advocating for a workplace free of discrimination and harassment, working to ensure that our clients' voices are heard, and their rights are protected. We provide legal counsel to individuals navigating the complexities of federal EEOC and sexual harassment complaints. We guide our clients through every step of the complaint process, from filing initial charges to representing them in any ensuing investigations or hearings.
Schedule a consultation with our attorneys today by calling (202) 350-3881.
