EEOC Issues Proposed Enforcement Guidance on Harassment in the Workplace

On October 2, 2023, the Equal Employment Opportunity Commission (“EEOC”) issued its proposed Enforcement Guidance on Harassment in the Workplace (the “Proposed Guidance”). The Proposed Guidance is available for public comment until November 1, 2023. At that time, the EEOC will consider the comments received and either release the Proposed Guidance as final or make revisions to the Proposed Guidance based on the public comments.

The Proposed Guidance consolidates and supersedes the EEOC’s prior guidance on harassment and intends to serve as a single resource for evaluating harassment claims. The Proposed Guidance focuses on three components of a harassment claim: (1) Covered Bases and Causation; (2) Discrimination with Respect to a Term, Condition, or Privilege of Employment; and (3) Liability.

1. Covered Bases and Causation

The first component, Covered Bases and Causation, identifies the legally protected characteristics that may form the basis of a harassment claim (e.g., race and color, national origin, religion, age, disability, genetic information, and sex). 

The Proposed Guidance clarifies that sex-based harassment includes harassment based on pregnancy, childbirth, or related medical conditions, and also includes decisions about contraception and abortion. The Proposed Guidance also clarifies that sex harassment includes harassment based on sexual orientation and gender identity. Harassment based on sex can also include non-sexual conduct that is based on sex, such as bullying directed towards employees of a certain sex or sexist comments. 

The Proposed Guidance provides that the law also protects, among other things: (i) harassment based on the perception that an individual has a particular protected characteristic that is covered by the law, even if the perception is incorrect; (ii) harassment because an individual associates with someone in a protected class; and (iii) harassment based on social or cultural expectations of how individuals in a protected group usually act, appear, or behave.  

The first component also discusses and provides examples of how causation is established. The Proposed Guidance states that causation is established if the evidence shows the complainant was subjected to harassment because of the protected characteristic, regardless if the harasser explicitly refers to such characteristic. In determining causation, the following factors should be evaluated:

• Facially discriminatory conduct (e.g., racial epithets);
• Stereotyping;
• Context;
• Facially neutral conduct that is linked to discriminatory conduct;
• Timing;
• Comparative Evidence; and
• For Sex-Based Harassment:
  • Explicit or implicit proposals of sexual activity;
  • General hostility towards one sex; and
  • Comparative evidence of how the harasser treats persons who share the complainant’s sex vs. the treatment of others.

2. Discrimination with Respect to a Term, Condition, or Privilege of Employment

It is well settled that in order to be liable for workplace harassment, the harassment must affect a “term, condition, or privilege” of employment. The Proposed Guidance does not change this standard, but the EEOC takes a broad view of what constitutes a hostile work environment and provides various examples.

For example, the Proposed Guidance provides that a hostile work environment claim may result from conduct outside of the office or conveyed using work-related equipment and systems. Conduct may also give rise to a hostile work environment claim even if communicated through private phones, computers, or social media accounts, provided it impacts the workplace. This includes an employee’s private postings on Facebook, Snapchat, and other social media accounts. The EEOC takes the position that these private communications impact the workplace if, for example, the employee about whom the inappropriate comment was made reads the inappropriate post made by the co-worker or if employees learn of the inappropriate social media post and discuss it in the workplace.

3. Liability

The third component of the Proposed Guidance discusses liability standards in harassment cases. The Proposed Guidance does not change the liability standards. However, it offers guidance on, among other things, what constitutes an effective anti-harassment policy, complaint process, and training procedure. 

The Proposed Guidance states that for an anti-harassment policy to be effective it must include the following:

• Definition of prohibited conduct;
• Requirement that supervisors report harassment when they are aware of it;
• Offer multiple avenues for reporting harassment;
• Identify accessible points of contact to whom reports of harassment should be made and include contact information; and
• Explanation of the complaint process (discussed below), including anti-retaliation and confidentiality protections.

The anti-harassment policy should be widely disseminated and comprehensible to employees, including translations if appropriate. 

An effective complaint process should, at a minimum:

• Provide for prompt and effective investigations and corrective action;
• Provide adequate confidentiality protections; and
• Provide adequate anti-retaliation protections.

Effective training should, at a minimum:

• Explain the anti-harassment policy and complaint process, including any alternative dispute resolution process, and confidentiality and anti-retaliation protections;
• Describe and provide examples of prohibited harassment and conduct that may rise to the level of prohibited harassment; 
• Provide information about employees’ rights if they experience, observe, become aware of, or report conduct that they believe might be prohibited; and
• Provide supervisors and managers information about how to prevent, identify, stop, report, and correct harassment and clear instructions for addressing and reporting harassment.

The anti-harassment training should be tailored to the workforce, be provided on a regular basis to all employees, and be provided in a clear, easily understandable style and format. 

Finally, the Proposed Guidance discusses systemic harassment, including harassment involving multiple complainants and “pattern or practice claims.” Where the harassment subjects multiple individuals to a similar form of discrimination, such individuals may each claim they were subjected to a hostile work environment. When a “pattern or practice” claim is made, the appropriate inquiry is whether the work environment, as a whole, was hostile – not the subjective experience of each individual claimant. In addition, to avoid liability in a pattern or practice case, the employer’s actions to stop the harassment must be systemic in nature, rather than focus only on the specific individuals who were harassed. 

Key Takeaways:

The Proposed Guidance does not change well-settled law regarding harassment claims. Instead, it clarifies how the EEOC intends to apply the law to certain protected characteristics, such as expanding sex-based harassment claims to include harassment based on pregnancy, childbirth, or related medical conditions, and decisions about contraception and abortion, reflecting the EEOC’s intent to interpret the law broadly. The Proposed Guidance also provides examples of how harassment law applies to an employee’s use of electronic communications and social media. Finally, the Proposed Guidance provides a road map of what an employer’s anti-harassment policy, complaint procedure, and training should include. Employers should review their policies, procedures, and training to confirm compliance.   

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Kimberly F. Williams, an O'Melveny partner licensed to practice law in Texas, Jason Zarrow, an O'Melveny counsel licensed to practice law in California, Susannah K. Howard, an O'Melveny partner licensed to practice law in California and New York, Adam Karr, an O'Melveny partner licensed to practice law in California and Utah, and Natasha W. Teleanu, an O'Melveny partner licensed to practice law in New York, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

© 2023 O’Melveny & Myers LLP. All Rights Reserved. Portions of this communication may contain attorney advertising. Prior results do not guarantee a similar outcome. Please direct all inquiries regarding New York’s Rules of Professional Conduct to O’Melveny & Myers LLP, Times Square Tower, 7 Times Square, New York, NY, 10036, T: +1 212 326 2000.