On September 29, 2023, the Equal Employment Opportunity Commission (EEOC) issued Proposed Enforcement Guidance on Harassment in the Workplace, which presents a legal analysis of the standards for harassment and employer liability applicable to claims of harassment under the statutes enforced by the EEOC. The proposal is open to public comment until November 1, 2023.

The Guidance, which consolidates and supersedes several earlier EEOC guidance documents, is “intended to provide clarity to the public regarding existing requirements under the law or [EEOC] policies.” Notably, given the failure to finalize guidance published in 2017, this proposed Guidance is the first update to the EEOC’s workplace harassment guidance since 1999. As such, it incorporates “notable changes in law, including the Supreme Court’s decision in Bostock v. Clayton County, the #MeToo movement, and emerging issues, such as virtual or online harassment.” Supporting the need for updated Guidance, the EEOC noted that more than one-third of all complaints filed with the EEOC between 2016 and 2022 included an allegation of harassment based on a protected characteristic (e.g., race, sex, disability, etc.).

Examples of notable conclusions in the Guidance include:

• Sex-based harassment can include harassment based on a woman’s reproductive decisions, such as decisions about contraception or abortion.

• Intentional and repeated use of a name or pronoun inconsistent with an individual’s gender identity (misgendering) or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity are forms of harassment on the basis of sexual orientation or gender identity.

• Intersectional harassment is the harassment based on the intersection of two or more protected classes. For example, a Black woman who is harassed solely because she is a Black woman would be experiencing intersectional harassment.

• It is increasingly likely that the non-consensual distributions of real or computer-generated intimate images using social media – even occurring outside the workplace – can contribute to a hostile work environment if it impacts the workplace.

The Guidance is paired with a Fiscal Years 2024 - 2028 Strategic Enforcement Plan, which has the twin goals of “preventing and remedying systemic harassment, and protecting vulnerable workers and people from underserved communities from harassment.” In the Strategic Enforcement Plan, the EEOC states that to combat the “persistent problem” of systemic harassment, it will focus on “strong enforcement with appropriate monetary relief and targeted equitable relief to prevent future harassment” as well as “promoting comprehensive anti-harassment programs and practices, including training tailored to the employer’s workplace and workforce, using all available agency tools, including outreach, education, technical assistance, and policy guidance.” To further its goal of preventing harassment, the Guidance contains minimum standards for anti-harassment policies, internal complaint processes, and trainings. Whether an employer meets these standards may impact its ability to establish that it exercised reasonable care to prevent and correct harassment.

Although the Guidance, even once formally adopted, will not have the effect of binding law, it will not only serve as a resource for the EEOC, and likely for other agencies that investigate, adjudicate or litigate harassment claims, but it should serve as a useful resource for employers in understanding how the EEOC interprets and applies anti-harassment principles. Given the focus at the EEOC on strong enforcement of harassment claims, now is a good time for employers to review and update their policies and trainings.