New EEOC Harassment Guidelines Coming in 2024
January 17, 2024
It’s hard to believe, but the Equal Employment Opportunity Commission hasn’t updated its enforcement guidance on workplace harassment since 1999. But with the new year comes the proposed EEOC updated guidance for legal standards and employer liability regarding harassment claims. When the enforcement guidance is finalized, it can be cited in legal disputes and taken into account by the courts, although such guidelines are not law.
The guidelines cover workplace harassment based on the following protected classes:
- Race and color
- National origin
- Religion
- Sex (including pregnancy, childbirth, and related medical conditions; and sexual orientation and gender identity and expression)
- Age (of employees 40 and older)
- Disability (including a past record of disability or a request for accommodation)
- Genetic information (including family medical history)
While the protected classes are the same, the refreshed, updated guidelines for what constitutes harassment will supersede those that are decades old, so that HR departments need to familiarize themselves with the changes in order to keep current.
The new guidelines make explicit such significant updates as:
- The posting of inappropriate sexual images on social media, which adversely affects the work environment, can be considered illegal hostile work environment harassment.
- Harassment can be based on a woman’s decisions regarding contraception, abortion, or other reproductive choices.
- Misgendering, or a pattern of intentionally and repeatedly using a name or pronoun inconsistent with someone’s gender identity, or preventing access to a bathroom or locker room consistent with a person’s gender identity constitutes harassment.
- Harassment may be based on an individual’s inclusion of more than one protected class (say, when someone is discriminated against because of both their age and gender).
The EEOC’s “PROPOSED Enforcement Guidance on Harassment in the Workplace” document, which includes helpful examples of workplace harassment, can be viewed at https://www.eeoc.gov/proposed-enforcement-guidance-harassment-workplace.
The document also provides guidance and examples that can help you determine whether a victim of harassment has been mistreated based on their inclusion in one of the aforementioned protected classes, and has therefore been subjected to illegal employment discrimination. It’s an invaluable resource for HR departments. So get a head start, and be as prepared as you can for the new year!