On April 29, 2024 – for the first time in more than twenty years – the EEOC issued its long-awaited updated Enforcement Guidance on Harassment in the Workplace. The updated guidance, which supersedes the EEOC’s decades-old guidance from the 1980’s and 1990’s, now addresses subjects arising in the modern workplace, including the rise of remote work, the #MeToo movement, and the U.S. Supreme Court’s  decision in Bostock v. Clayton County, 590 U.S. 644 (2020), in which the Court held that Title VII of the Civil Rights Act protects workers from discrimination based on their sexual orientation and gender identity. A few key updates that employers should be aware of include the following:  

Conduct in virtual environments

With the increase in virtual and remote work, the Guidance explains that conduct within a virtual work environment can constitute a hostile work environment. Stated differently, the existence of harassment and a hostile work environment is not limited exclusively to a physical workplace. To illustrate its point, the Guidance identified several example scenarios where harassment could exist in a virtual or remote workplace, such as sexist or ableist comments made during a video meeting or typed into a group chat, “racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting,” or “sexual comments made during a video meeting about a bed being near an employee in the video image.”

The guidance further provides that engaging in harassing conduct through electronic communications can constitute workplace harassment if it impacts the workplace, even if the employees are using private phones, computers, or social media accounts and even if the conduct does not occur in a work-related context. Notably, however, the EEOC clarifies that postings on a social media account generally will not, standing alone, contribute to a hostile work environment if they do not target an employer or its employees.

Guidance on intraclass harassment

The EEOC also provides guidance on intraclass harassment, which occurs when a harasser mistreats a coworker because of a protected characteristic that they share. In other words, actionable harassment can occur among employees of the same race, age, religion, gender, sexual orientation or other protected class.  The Guidance provides various examples to help employers understand the different scenarios where intraclass harassment can occur.

Addressing the developments from Bostock v. Clayton County

The Guidance also addresses the expansion of Title VII’s coverage concerning sex and gender under Bostock v. Clayton County, to include guidance relating to the protections against discrimination and harassment on the basis of sexual orientation and gender identification and expression. The Guidance includes illustrative examples of potential harassing behavior, including “outing” a coworker’s sexual orientation or gender identification, directing harassing conduct to an employee “because an individual does not present in a manner that would stereotypically be associated with that person’s sex,” intentionally misgendering an individual, or the “denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identify.”

Addressing pregnancy, childbirth, or related medical conditions under Title VII

Lastly, the EEOC broadened its definition of harassment to include harassment based on pregnancy, childbirth, and/or related medical conditions. The EEOC describes that such harassment can involve issues, including but not limited to, lactation, using or not using contraception, or the decision to have, or not to have an abortion. Notably, the final Guidance works in tandem with the EEOC’s recent final regulation to implement the Pregnant Workers Fairness Act (enacted June 27, 2023) which goes into effect on June 18, 2024.   

In short, although the EEOC’s Guidance does not have the full force and effect of the law, it provides clear guidelines and requirements under the law and the EEOC’s policies. Employers should review their own anti-discrimination and harassment policies and practices to ensure compliance with the EEOC’s updated Enforcement Guidance on Harassment in the Workplace.