The U.S. Equal Employment Opportunity Commission recently announced the publication of new proposed enforcement guidance regarding Title VII anti-harassment law. Using a variety of real-life examples, the Guidance summarizes the agency’s views on the legal standard applied to harassment claims, including what types of conduct is covered, available defenses for employers, the elements of compliant policies and training, and employer liability for supervisor and co-worker conduct. It also addresses recent legal and social developments that affect the analysis of a workplace harassment claim, such as the Supreme Court decision finding Title VII coverage for sexual orientation, the #MeToo movement, and the uptick in virtual and online harassment. If finalized the Guidance will supersede several past EEOC guidance manuals from the 1980’s and 1990’s. It also comes at a time when harassment claims are common. In 2022 alone, 35% of the charges filed with the EEOC included some type of harassment claim. The complete Guidance can be found here.
Remember, the Guidance is not law. It is mere guidance. But it does announce to employers how the EEOC views the law, including how they intend to enforce it. Here are some highlights:
The EEOC asserts in the new Guidance that Federal law prohibits not just sexual harassment, but harassment based on all protected bases covered by Title VII. This includes race, color, religion, disability, age, sexual orientation, gender identity, pregnancy, and sex, including regarding a woman’s reproductive decisions or decisions about contraception or abortion.
The new Guidance also identifies a variety of conduct can be unlawful harassment including 1) using racial, religious or sex-based epithets, 2) expressing stereotypes of a person’s race, color, gender, religion, sexual orientation, or other protected status and 3) commenting on acting on traits or characteristics linked to a person’s protected class, such as their name, cultural dress, accent or physical characteristics, grooming or other practices, can be unlawful harassment.
There also must be causation in order for an employer to be found liable for harassment. This means the person must have been subjected to harassment because of his or her protected characteristic, whether or not the harasser explicitly refers to that characteristic. The conduct must also be severe or pervasive, as opposed to involving general boorishness, juvenile conduct, or annoying behavior.
These are some real-life situations offered by the EEOC as examples of harassment in the workplace:
- Gender Identity. Supervisors, coworkers and customers misgendering a transgender individual by frequently using the prior male name, male pronouns and phraseology “dude” to speak to a cashier who identifies as female.
- Disability. Calling a co-worker with a neuropathic condition that causes a limp, “Forrest Gump,” “cripple,” “Gumby” and “crippled ninja”.
- Color. Referring to a Pakistani-American with brown skin as “turd,” a supervisor making comments suggesting the worker’s skin is the same color as human feces, and a co-worker leaving a cup containing feces on the worker’s desk.
- Sex/Sexual Orientation. A foreman at an iron working plant several times a week referring to an employee as a “pu- – y” and a “princess,” and approaching the individual from behind and simulating intercourse with him because he believes the employee is gay.
- Race. A Black truck driver finding banana peels on his truck on multiple occasions, with white co-workers looking on to see his reaction, to invoke “monkey imagery” historically directed at racial stereotypes against Black individuals.
- Age. A supervisor calling a 62-year-old consultant at a professional services company “old man” on a near daily basis, repeatedly asking him when he is going to retire because he wants to bring in “fresh ideas” and stating during a staff meeting about flu shots that he would not be upset if the flu “took out some of the “old timers.”
- Sex. A female worker sending revealing photographs of herself and notes asking for dates to a male co-worker, describing fantasies about him, and telling him how attractive he is despite his repeated assertions that he is not interested.
- Religion. An Arab American employee is the subject of ethnic epithets that a coworker posts on a personal social media page, and his job performance suffers after he learns of the post from co-workers who have seen the comment and talk about it at work.
The Guidance explains further that although there is “no magic number” of harassing incidents that automatically create a hostile work environment, nor a minimum threshold for severity. The determination for whether conduct constitutes unlawful harassment is a case-by-case, fact based analysis that depends on evaluating all of the facts and circumstances. Nevertheless, there is some conduct sufficiently severe that, if it occurs, would establish a hostile work environment from on a single incident, including for example, a sexual assault, physical violence or the threat thereof, the use of symbols of violence or hatred toward a protected characteristic (such as a swastika, a Klansman’s hood, or a noose), a threat to deny job benefits for rejecting sexual advances, and/or the use of the “n-word” in the presence of a Black employee.
The EEOC also takes the position in the Guidance that actionable harassment can be based on a perception about an individual’s protected characteristic such as national origin or religion, even if incorrect. So, for example, harassment of a Hispanic person because the harasser believes wrongfully that the person is Pakistani would still be national origin harassment. Similarly, harassment of a Sikh man wearing a turban because the harasser thinks he is Muslim is religious harassment, even though the belief triggering the harassment is inaccurate.
The fact that an individual tolerated or participated in the conduct does not automatically defeat a claim of harassment, according to the Guidance. If for example, an employee experiences derogatory comments targeted at his or her race or sex, but felt that there was no other choice but to accept the conduct, i.e., to go along to get along. This might happen if, for example, the harasser has control over the terms and conditions of the person’s work, this might still be harassment. A complainant’s subjective perception of the harassment initially as acceptable but later as offensive and hostile also does not automatically preclude a finding of harassment. If for example, the harassing conduct becomes more frequent, more offensive or if the circumstances change over time, such as after the end of a romantic relationship or if another employee jumps on the band wagon to join in the harassment, these circumstances could support a harassment claim even though the alleged victim initially accepted the conduct.
The Guidance also provides that there is no “crude environment” exception to Title VII harassment. If the alleged conduct meets the standard of severe, pervasive, and offensive so as to create a hostile work environment, then such conduct would support a harassment claim regardless of whether there had been a long-standing practice or cultural acceptance of certain conduct at work. So, for example, a construction worksite that historically has permitted sexually suggestive or explicit comments about women will not be a defense to a claim of sexual harassment by a woman who joins the workforce and complains about such conduct.
That said, harassment must be both objectively offensive and subjectively offensive. While culture may suggest whether the accuser truly found the conduct subjectively offensive, a generally harsh work environment does not provide its own excuse for a harsh work environment. If the accuser finds the conduct offensive and if the conduct is objectively offensive, then the employer faces the risk of liability.
The Guidance also reiterates the longstanding view that the protected characteristic of the alleged harasser is irrelevant to determining the existence of harassment. Men and women, gay or straight, Black or White, Chrisitan or Muslim can be the perpetrator or victim of harassment. This is true when the harasser and the targeted person share the same protected characteristic. Again, while such facts may be evidence tending to show a lack of intent to discriminate, they are not conclusive and they do not provide a defense for harassing conduct.
The Guidance further clarifies that harassment can happen anywhere – virtually or in person – not only at the actual workplace, but also at a work-sponsored event off premises, using work devices, and even in people’s personal, virtual world or social networks. Although employers are generally not responsible for conduct that occurs in non-work-related contexts, they may be liable when the harassment affects a person’s work or otherwise has consequences in the workplace.
The Guidance also makes clear that the existence and content of written harassment policies and the timing and scope of investigations are critical to the success of an employer’s defense to a harassment claim. In essence, employers must have detailed anti-harassment policies, provide training, and take seriously every complaint that possibly concerns harassment or discrimination if it wants to place itself in the best position to defend itself against a harassment claim. Further to this point, the Guidance reminds us that and someone other than the alleged victim can even make the report. It also clarifies that there are no magic words that an employee must use to make a complaint. An employee need not identify that any law has been violated or even describe the conduct as harassment or discrimination. The employee must simply say enough that to “alert the employer of a reasonable probability” that an employee is being harassed, so the employer knows or has reason to know that it needs to investigate the conduct and take corrective action. According to the Guidance, an employee simply making a request for a schedule change because she does not want to work alone with a male co-worker because “he did or said something that he should not have” would constitute report of harassment that should trigger an investigation. This suggests it is always better to look into a possible complaint when it has even the vaguest whiff of alleging unlawful harassing discriminatory conduct. It could be the difference between having a defense to a claim or not.
The Guidance is expected to be finalized shortly, unless there is a legal challenge (which is not expected). While it does not “have the force and effect of law” and is not binding on what employers must do to prevent or respond to harassment, the Guidance is still important. Courts often give deference to agency publications in adjudicating claims. Furthermore, the Guidance lays out in significant detail how the EEOC would analyze a harassment charge if it were brought in that agency.
The Guidance offers invaluable insight for employers about how to deal with harassment encountered at work and avoid to liability if an employee ever sues. Employers therefore may wish to review their policies, practices and procedures with this Guidance in mind, to assess whether and to what extent they would meet the EEOC’s stated standards in the Guidance. Of course, employers should always seek guidance from counsel if it has any question about how to proceed.