Long-Delayed EEOC Proposed Workplace Harassment Guidelines Released

After a delay of six years, the U.S. Equal Employment Opportunity Commission (EEOC)  published proposed guidance related to workplace harassment on October 2, 2023, as reported in a blog post by Proskauer. If it is adopted, it would supersede four EEOC guidance documents issued in the 1990s, as well as a section on harassment in the EEOC Compliance Manual.

Since the previous release of the proposed guidance, “some notable changes in society and the law have occurred, including the #MeToo movement going viral and issuance of new court decisions that required additional updates to the draft guidance,” according to Victor Chen, EEOC spokesman. The proposed guidelines are based on the three components of a harassment claim.

“Covered Bases and Causation” answers the question of whether the conduct was based on the individual’s legally protected characteristics under the federal EEO statutes. It discusses how federal laws like Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, establish protected characteristics, such as race and color, age, and sex — including sexual orientation and gender identity.

“Discrimination with Respect to Employment” discusses whether the harassing conduct resulted in discrimination regarding a term, condition, or privilege of employment. It also addresses “quid pro quo” harassment and a hostile work environment, including conduct that occurs in a work-related context outside an employee’s regular workplace, for example, by electronic communication.

“Liability” addressed the basis for holding the employer liable for the conduct. It illustrates the different liability standards depending on, say, if a proxy of the employer, a supervisor, or a non-supervisory employee is accused of the harassment.

The proposed guidance also includes a section on “systemic harassment,” which involves situations where multiple individuals of the same protected characteristic are subjected to a similar form of discrimination.