Officium, LLC

New EEOC Guidance on Workplace Harassment

On April 29, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) released updated guidance on harassment in the workplace, marking the first significant update in over two decades.

Titled “Enforcement Guidance on Harassment in the Workplace,” this new guidance integrates feedback from nearly 40,000 public comments and reflects the latest legal standards and best practices for addressing workplace harassment. Below is a breakdown of what is included in the EEOC’s updated protections, highlighting the need for potential changes to your business’ employee handbook.

Inclusion of LGBTQ+ Protections

The guidance recognizes that discrimination based on sexual orientation and gender identity is unlawful under Title VII of the Civil Rights Act of 1964. This includes harassment like misgendering, outing someone’s sexual orientation or gender identity without their consent, and denying access to appropriate bathrooms.

Protections for Pregnancy and Related Conditions

The guidance emphasizes protections under the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). It addresses harassment related to pregnancy, childbirth, lactation, and reproductive choices, providing clear examples of what constitutes unlawful behavior.

Race and Color-Based Harassment

For the first time, the EEOC has separated harassment based on “color” into its own category, distinct from race or national origin. The guidance clarifies that color-based harassment due to differences in pigmentation, complexion, or skin tone is independently covered under Title VII.

Genetic Information and Family Medical History

Under the Genetic Information Nondiscrimination Act (GINA), harassment based on genetic information or family medical history is explicitly unlawful. This could include making derogatory remarks about an employee due to their family’s medical conditions.

Retaliatory Harassment

The guidance introduces the concept of retaliatory harassment, clarifying that such behavior can be unlawful even if it doesn’t create a hostile work environment. Any conduct that might deter a reasonable person from engaging in protected activity is considered retaliation.

Intraclass and Intersectional Harassment

Examples of harassment within the same protected category (intraclass) and targeting individuals based on multiple protected characteristics (intersectional) are provided. This includes scenarios like age-based harassment within the same age group and combined sex and age discrimination.

The guidance offers over 70 hypothetical examples of potential unlawful harassment, reflecting modern workplace dynamics such as hybrid work settings and the use of electronic communication. 

Employers are encouraged to review and update their anti-harassment policies to align with the new guidance, and should incorporate training or similar tools to address harassment by clients, customers, or other nonemployees.

The EEOC’s updated guidance on workplace harassment represents a significant step forward in creating safer, more inclusive work environments. By proactively updating policies and training programs, employers can better protect their employees and reduce the risk of liability. 

If you have questions about the new clarifications and how to incorporate them into your workplace, I’m happy to help. Please contact me at edgar@officiumdc.com.