Employers Should Prep for EEOC’s New Workplace Harassment Rules

Last week, the Equal Employment Opportunity Commission released draft enforcement guidance on workplace harassment that published Oct. 2 in the Federal Register. The EEOC’s new guidance addresses evolving changes in workplace and employment case law, including the US Supreme Court’s June 2020 decision in Bostock v. Clayton County. This held that Title VII of the 1964 Civil Rights Act’s prohibition on sex discrimination extends to discrimination based on sexual orientation and gender identity.

The guidance provides current examples of harassment and “addresses the proliferation of digital technology and how social media postings and other online content can contribute to a hostile work environment.” It also explains that offensive conduct, even if not directed at a complainant, can be actionable.

Finally, the revised guidance makes clear that Title VII sex-based discrimination, as it pertains to pregnancy and other “related medical conditions,” includes an employee’s decisions regarding contraception or abortion. While the guidance remains open for comment until Nov. 1, employers can get a head start on reviewing and revising their policies.

Virtual Workplace Harassment

Companies should implement or review their protocols for addressing and reporting harassment that takes place virtually. The guidance explains that a hostile work environment can arise virtually when sexist comments are made during a video meeting, racist imagery is visible in an employee’s workspace during a video meeting, or sexual comments are made during a video meeting, for example that there’s a bed visible near an employee.

Employers can consider the following to ensure they’re taking thoughtful steps to prevent harassment on virtual platforms.

Anti-harassment trainings should address remote work and make clear that harassing communications on video calls, work chats, and text messages are actionable. Employers also should establish protocols for use of video platforms including adopting a uniform company background to prevent unwanted images.

Ensuring that employees know that virtual workspaces continue to be subject to applicable laws and regulations can decrease the sense of informality around such communications. Indeed, the New York Times noted that workplace harassment often takes place because the “channels through which remote work occurs—text, phone, video—are often unmonitored, unrecorded or occur outside employer-sponsored platforms.”

Third-Party Harassment

The new EEOC guidance establishes that harassing conduct can constitute a hostile work environment even if the behavior isn’t directed at the specific employee who later complains. The guidance explains, for example, that use of sexist slurs “may contribute to a hostile work environment” for women even if the epithets aren’t directed at them.

This guidance reflects recent case law, including a case in the Second Circuit that found a plaintiff had “raised disputed issues of material fact as to whether a coworker’s comments about religion and the complainant’s national origin, which were not directed at the complainant but made to others in his presence, contributed to a hostile work environment.”

The guidance also makes clear that conduct occurring outside of the “complainant’s presence as long as the complainant becomes aware of the conduct during the complainant’s employment” can be actionable.

Similarly, it notes that in some circumstances, “an individual who has not personally been subjected to unlawful harassment based on their protected status may be able to file an EEOC charge and a lawsuit alleging that they have been harmed by unlawful harassment of a third party.”

Given the above, it’s important that employers instruct employees on a zero-tolerance policy for any kind of inappropriate or offensive speech or actions, even if not directed at a specific individual. Companies that have clear and actionable reportable policies will also better ensure more frequent reporting, which is crucial to address any purported harassment in real time.

Pregnancy, Childbirth, or Related Conditions

The revised guidance makes clear that sex-based harassment includes discrimination against an employee based on medically-related conditions to pregnancy and childbirth, including abortion. This aligns closely with the Pregnant Workers Fairness Act, effective June 27, 2023, but applies solely to accommodations in the workplace.

In proposed regulations from the EEOC on the PWFA, accommodations are included based on past pregnancy, potential or intended pregnancy, infertility treatment, use of contraception, lactation, breastfeeding, and the decision to have or not have an abortion.

The PWFA incorporates Title VII’s exemption allowing religious entities to require workers to adhere to the entity’s own faith and religious principles. In light of PWFA’s passage and the EEOC’s recent harassment guidance, companies should ensure their policies include clear language about discrimination on the basis of pregnancy, childbirth, or other related medical conditions and that proper accommodations are being offered pursuant to the PWFA.

The EEOC’s new guidance provides workplaces an opportunity to revise their policies and protocols to better reflect the current legal landscape. The implementation of new policies and procedures will ensure not just compliance but also an improved workplace environment for employees.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Roberta (“Robbie”) Kaplan is founder of Kaplan Hecker & Fink. In addition to a complex civil litigation practice, she advises clients on issues relating to discrimination, diversity, and inclusion.

Julie Fink is managing partner at Kaplan Hecker & Fink. She leads the employment practice and oversees all aspects of management, growth, and strategic planning.

Rachel Tuchman is an associate at Kaplan Hecker & Fink. She represents clients in complex civil litigation and investigations pertaining to gender discrimination, #MeToo, and Title VII and Title IX litigation in education and workplace settings.