On April 29, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) published its newest “Enforcement Guidance on Harassment in the Workplace” (the “Guidance”). This marks the EEOC’s first update to its anti-harassment guidelines since 1999. The Guidance incorporates practical and legal developments from the past 25 years, specifically addressing harassment in virtual or hybrid work environments, along with harassment based on pregnancy and related medical conditions, sex, and genetic information.
EECO Guidance
Although the Guidance does not create new law and is not binding on courts, it offers an opportunity for employers to review their harassment prevention policies and procedures and to update employee anti-harassment training. Noteworthy positions taken by the EEOC include:
- Conduct on social media platforms unrelated to work, such as personal social media accounts, may contribute to creating a hostile work environment. Here, the guidance provides an example demonstrating conduct on social media outside of the workplace that contributes to a hostile work environment. In this example, during a romantic relationship between two employees, one obtains sexually explicit photos of the other. After the employees break up, the employee not pictured in the photo threatens to post the photo on social media. The threats come to fruition, and the photo is posted on social media with some other coworkers being tagged. The employee who is pictured overhears coworkers making fun of the image and talking about how the employee pictured must have poor judgment. The employee pictured is humiliated and finds it difficult to continue working. Based on these facts, EEOC found the conduct was sufficient to create a hostile work environment.
- Conduct on work-related communication platforms and during video meetings can contribute to a hostile work environment. This not only includes comments made during a video meeting or typed in a group chat, but also offensive imagery that is visible in an employee’s workspace while the employee participates in a video meeting. For instance, racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting can create a hostile work environment.
- Unlawful harassment based on pregnancy or childbirth includes issues such as morning sickness and decisions regarding abortion. Harassing conduct can include employees making comments about another employee’s pregnancy-related medical conditions, such as morning sickness. For example, employees complaining that a pregnant employee gets “special perks,” such as a flexible telework schedule as an accommodation for her limitations due to morning sickness, may constitute harassment. Moreover, comments regarding an employee’s decision to have or not have an abortion can also constitute harassment.
- Unlawful harassment based on sex includes issues such as contraception. Harassing conduct includes coworkers joking or making comments about a man’s decision to get a vasectomy. By way of example, an employee takes a short period of medical leave to recover from a vasectomy. After returning, some coworkers repeatedly ridicule the employee for the vasectomy, calling him a “gelding,” “eunuch,” and “numb nuts,” and saying things such as “why did you neuter yourself like a dog?” and “a real man would never get a vasectomy.” These comments by coworkers may constitute harassing conduct.
- Comments from coworkers and customers about gender identity and sexual orientation can rise to the level of sex-based harassment. An employee asking another employee invasive questions about their sexual orientation, gender identity, gender transition, or intimate body parts can constitute harassment. For example, an employee intentionally misgendering another employee or making comments like, “Who wears the pants at home” or “Were you born a [insert gender]” can constitute harassment. Further, after hearing these remarks by employees, if customers also intentionally misgender the employee or ask similar questions, the customers’ actions can also constitute harassment.
- Employees’ comments related to DNA tests can constitute harassment. To illustrate this is the example of an employee who tells coworkers about a cousin who recently took a DNA ancestry test that revealed that they had inherited the gene mutation that would put them at a higher risk of developing a condition known as Werewolf Syndrome. Soon after this discussion, coworkers began to refer to the employee as “the werewoman,” make howling noises when they passed her office, and leaving dog treats on her desk. The coworkers’ conduct could constitute harassment based on genetic information.
The Guidance also provides employers with insight into avoiding liability for harassment. It discusses the importance of maintaining effective anti-harassment policies, complaint processes, and training programs. It also discusses appropriate standards for conducting internal investigations. Additionally, the EEOC published a “Summary of Key Provisions” document and a “fact sheet for small businesses,” with more information for employers.
Employers should ensure that all personnel with responsibility for addressing workplace harassment complaints and conducting investigations familiarize themselves with the Guidance and related materials and that anti-harassment policies are reviewed and updated as needed to incorporate the EECO’s guidance regarding effective anti-harassment policies.
If you have any questions about the Guidance or require assistance to ensure your policies and practices are compliant with existing anti-harassment laws, please reach out to your Cook Brown attorney.
