EEOC Issues Updated Guidance on Workplace Harassment

For the first time in nearly 25 years, the U.S. Equal Employment Opportunity Commission (EEOC) has issued updated formal guidance on workplace harassment. While the EEOC issued a technical assistance document in 2017, its newly-released Proposed Enforcement Guidance on Harassment in the Workplace represents the Commission’s first formal issuance on the subject since 1999.

As such, the EEOC’s Proposed Enforcement Guidance covers a lot of ground. To be clear, as its name suggests, the EEOC’s guidance is still in proposed (non-final) form at this stage. Now that it has been proposed, the new guidance must undergo a public comment period before it can be formally adopted. But, adoption is likely, and employers of all sizes would be well-served to review the EEOC’s Proposed Enforcement Guidance and ensure that they are doing what is necessary to protect their employees (and themselves).

The EEOC’s Updated Guidance on Workplace Harassment: An Overview

So, what does the EEOC’s updated guidance on workplace harassment say? Here are some of the key provisions in the Commission’s Proposed Enforcement Guidance on Harassment in the Workplace:

1. Clarifying What Constitutes Harassment in the Workplace

The EEOC’s Proposed Enforcement Guidance begins by clarifying what constitutes harassment in the workplace. After listing the various forms of workplace harassment (i.e., harassment based on sex, color, and other protected characteristics), the EEOC clarifies that the following are also prohibited under federal law:

• Harassment based on the perception that an employee is a member of a protected class, even if the perception is incorrect;
• Harassment based on “associational discrimination,” or the victim’s relationship with a member of a protected class; and,
• Harassment committed by a supervisor or other co-worker even if the harasser is in the same protected class.

2. Intersectional Harassment

In its Proposed Enforcement Guidelines, the EEOC also seeks to make clear that harassment based on a combination of protected characteristics should be treated similarly to other forms of harassment. The EEOC refers to this as “intersectional harassment,” and provides the following examples: “If a Black woman is harassed based on stereotypes about Black women, such harassment is covered. Similarly, if a woman age forty or older is harassed based on stereotypes about older women, this harassment is covered.”

3. Workplace Harassment Claims Require Proof of Causation

While the EEOC’s Proposed Enforcement Guidelines expand the Commission’s previously-recognized definition of harassment in many respects, they also make clear that not all forms of harassment targeting members of protected classes are actionable under federal law. Harassment claims require proof of causation, or evidence showing that the victim “was subjected to harassment because of the complainant’s protected characteristic.” While other forms of harassment may be prohibited under state law or an employer’s policies and procedures, they do not fall within the EEOC’s enforcement jurisdiction.

Speak with an HR Consultant at AR Group

Employers of all sizes need to take adequate steps to protect their employees against harassment in the workplace. If you have questions about what your company should be doing to prevent workplace harassment, we invite you to get in touch. To inquire about a confidential workplace compliance assessment, please call 720-452-3300 or tell us how we can help online today.