Last month, the U.S. Equal Employment Opportunity Commission (“EEOC’) unveiled its highly anticipated Enforcement Guidance on Workplace Harassment.

After almost a decade of efforts to update its harassment guidelines, the EEOC’s new guidance delves into topics that are most relevant to the modern workforce. The guidance sets forth the EEOC’s position on its definition of “protected characteristics” and identifies workplace behaviors that rise to the level of harassment. These topics include, for example, the #MeToo movement which swept the nation with well-publicized lawsuits involving sexual harassment and sexual violence and the U.S. Supreme Court’s decision in Bostock v. Clayton County, Georgia, where the Court ruled that Title VII of the Civil Rights Act protects workers from discrimination based on their sexual orientation and gender identity.

The revised guidelines also address “virtual harassment” in the era of remote work, teleconferencing, and social media. The guidelines purport to reflect recent legal and social developments by providing additional protections for workers and tools for employers to address and prevent workplace harassment.

Is It or Is It Not Harassment?

The guidelines provide 77 specific fact patterns as examples of what constitutes unlawful harassment in the workplace. The examples range from common scenarios involving coworker sexual advances at holiday parties to comments regarding an employee’s natural hair.

The EEOC uses examples that don’t cross the line into sexual harassment, such as a single offensive remark to a female coworker during a heated disagreement; and postings on personal social media accounts that do not target the employer or its employees or have an impact on an employee’s work environment.

Key Takeaways and Next Steps

  • The EEOC guidelines are not binding and the EEOC could expand or revise its guidance. However, the guidelines should be used as a tool on how to address and prevent unlawful harassment claims in the workplace.
  • The guidelines may also be subject to legal challenges. However, barring any judicial intervention, the new EEOC guidance is in effect immediately.
  • Employers, including managers/supervisors and human resource teams, should review the EEOC’s guidelines and EEOC’s position with respect to unlawful harassment.
  • While not required, employers may also consider revising their anti-harassment policy to mirror the EEOC’s most recent guidance on the topic. Any policy that is challenged or referenced in an EEOC charge position statement or lawsuit, may be viewed favorably by both the EEOC and the courts when assessing an employer’s culpability for alleged workplace harassment. 
  • Employers should also consider evaluating current compliance programs and efforts to prevent and address unlawful harassment in the workplace including proper anti-harassment policies, trainings, and complaint procedures, and training supervisors on how to respond to harassment.

Dykema will continue to monitor any further guidance and additional developments under the EEOC guidelines. If you have any questions about the EEOC guidelines or harassment and discrimination policies or your obligations, responsibilities, or requirements under these applicable laws, please contact the authors of this article or a member of Dykema’s Labor and Employment team.