The U.S. Equal Employment Opportunity Commission (EEOC) recently released proposed enforcement guidance on harassment in the workplace.  The EEOC will accept comments on the proposed enforcement guidance until November 1, 2023, and then will proceed to finalize it.  Even though this guidance is yet to become final, employers should analyze their current policies and practices, consider updating them, and update workplace training to reduce the risk of claims and liability.  For example, employers should update their policies to make clear that sex-based harassment includes any discrimination against employees for conditions related to pregnancy, infertility treatment, use of contraception, childbirth, abortion, breastfeeding or pumping milk at work.

The 144 page guidance does not create new law.  Rather, the EEOC designed the guidance to provide updated examples given our ever-evolving workplace.  Examples include digital technology, including social media and other online content, and how such activity can contribute to a hostile work environment.

Employers should have a zero-tolerance policy for any harassment and should ask employees to report offensive conduct immediately so that swift corrective action may be taken to minimize the risk that such conduct could rise to the level of harassment.  Even offensive conduct not specifically directed at a particular individual can be actionable if an employee is exposed to the conduct in the workplace.

The guidance also makes clear that discrimination based on sexual orientation and gender identity is prohibited, and that policies for reporting harassment should include harassment in virtual settings.  In our increasingly digitized world, hostile work environments now also arise virtually.  For example, if racist imagery is visible on someone’s Zoom background, or if sexual comments are made in a video meeting, it is a problem.  Another example might be if a coworker criticizes another for displaying their pronouns on a video call.  Employees should understand the need to report these issues immediately and management should take prompt corrective action upon discovery of such conduct.

Examples of workplace harassment set out in the guidance include:

• an employee overhears his colleagues making derogatory comments about gay men and lesbians;
• an employee overhears her colleagues discussing their sexual liaisons in graphic detail;
• an employee mocks a coworker for wearing a leg brace around the office;
• an employee teases a coworker for having an accent;
• a male employee makes comments to his male colleague suggesting he is not conforming to male stereotypes;
• an employee makes comments to a colleague that he has reason to know would be offensive to her because of her religion;
• a supervisor repeatedly asks his older employee when he plans to retire;
• a supervisor asks her employee to participate in conduct that would subject another employee to a hostile work environment (both the targeted employee and the employee being asked to participate would have claims); and
• a Black employee learns about an offensive Instagram post by colleagues in which the colleagues used an unacceptable offensive derogatory term to describe her.

The above list is non-exhaustive, but it provides some examples for employers to discuss with their employees when educating their workforce on proper behavior both in and outside of the workplace.  Employers can reduce their liability exposure for the misconduct of lower level supervisors if a robust, effective anti-harassment program is in place.

In addition to the above, the guidance suggests employers publish policies in multiple languages depending on the needs of the workers, that they include multiple avenues for reporting harassment in the event the affected employee’s supervisor is the harasser, and that they clearly detail the complaint process, the prohibition against retaliation and any confidentiality protections.

The guidance also reminds employers that in order to avoid liability, the corrective action an employer takes in response to workplace harassment must be “reasonably calculated to prevent further harassment” under the specific circumstances.

For more than sixty years, The Bennett Law Firm has been a leader on matters of labor and employment law.  We not only assist employers in the development of anti-harassment policies, but also provide anti-harassment trainings from one to three hours per session for both managers and non-managerial staff and assist employers in conducting harassment and other workplace investigations.  For questions or for more information, please contact:

Peter Bennett (pbennett@thebennettlawfirm.com)
Rick Finberg (rfinberg@thebennettlawfirm.com)
Pawel Binczyk (pbinczyk@thebennettlawfirm.com) or
Ali Tozier (atozier@thebennettlawfirm.com)