Workplace harassment has long been a critical issue, affecting employees’ mental health, job satisfaction, and productivity. Harassment claims represented more than one third of all discrimination charges filed between fiscal years 2016 and 2023 with the Equal Employment Opportunity Commission (“EEOC”), which enforces the federal laws that prohibit employment discrimination. Yet this is the first time the EEOC updated its guidance on harassment in 25 years.

The new guidance consolidates and replaces the EEOC’s five guidance documents issued from 1987 through 1999. It provides 77 hypothetical examples of potential unlawful harassment reflective of today’s modern workforce, including issues related to both hybrid and remote workers, the widespread use of electronic communication and social media, as well as the more recent legal landscape with respect to what constitutes protected classes and harassing conduct under federal law.

Following are key aspects of the new guidance, including what the EEOC considers covered harassment, as well as features of an effective anti-harassment policy, complaint process and training. Understanding and implementing this guidance will help you reduce, if not eliminate, harassment in your workplace and thus help prevent costly, disruptive lawsuits.

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What is covered harassment?

1. Color is a standalone protected characteristic under Title VII of the Civil Rights Act, the federal law that prohibits discrimination on the basis of race, color, sex, religion, and national origin. While color is sometimes related to harassment based on race or national origin, color-based harassment due to an employee’s pigmentation, complexion, or skin shade or tone is independently protected.

For example, if a supervisor harasses darker-skinned Black employees but not lighter-skinned Black employees, that would be colorism harassment.

2. Pregnancy, childbirth, and related medical conditions fall under “sex” as a protected characteristic under Title VII. Specifically, harassment related to breastfeeding, contraception, and abortion is unlawful if linked to the person’s sex. For example, teasing comments about a male employee’s decision to get a vasectomy would constitute sex-based harassment.
3. Sexual orientation and gender identity are also included within the protected characteristic of “sex” under Title VII. This has been the law of the land since 2020, when the U.S. Supreme Court decided Bostock v. Clayton County. The EEOC provides the following examples of illegal harassing conduct based on sexual orientation and gender identity:

• • using epithets, asking intrusive questions, and physically assaulting an employee because of their sexual orientation or gender identity;
  • disclosing someone’s sexual orientation or gender identity without their permission;
  • harassing an employee because they do not present themselves in a manner typically associated with their sex;
  • intentionally and repeatedly using a name or pronoun inconsistent with an employee’s known gender identity; and
  • denying an employee access to a sex-specific restroom or locker room consistent with their gender identity.

4. Genetic information is a protected characteristic under the Genetic Information Non-Discrimination Act. Therefore, it is unlawful to harass an employee based on their or a family member’s genetic testing or their family medical history.

For example, it would be unlawful to harass an employee because they carry the BRCA gene, which is linked to an increased risk of breast and ovarian cancer.

5. Sincerely held religious beliefs are protected, but employers are not required to accommodate religious expression “that creates, or reasonably threatens to create, a hostile work environment.”

6. “Intraclass” harassment, which is harassment based on a protected characteristic conducted by a member of the same protected class, is prohibited under Title VII.

For example, if a female employee makes such belittling comments to a female coworker as “Shouldn’t mothers stay at home with their kids?” or “It’s sad to see you choose a career over family,” this constitutes sex-based harassment.

7. “Intersectional” harassment is harassment based on membership in more than one protected category. Employers must recognize the complex nature of identity and discrimination by considering how multiple aspects of an individual’s identity – such as race, sex, sexual orientation, disability, and age – intersect and impact their experiences of harassment.

For example, if a male manager makes comments to a female worker about her having a “hot flash” and being menopausal, such targeting, which is based on “stereotypes about older women,” is covered under both age and sex-based discrimination.

8. Cyber and remote work harassment can create a hostile work environment. This includes conduct displayed through spoken or written words or images via an employer’s email system, electronic bulletin board, instant messaging system, video conferencing technology, intranet, public website, and social media accounts.

For example, the U.S. Court of Appeals for the Ninth Circuit recently held that a federal prison worker’s Instagram account full of sexually offensive posts about work and, in particular, targeting a staff psychologist who worked there, created a hostile work environment in violation of Title VII, regardless of the fact that the posts were outside the physical workplace.

As the Ninth Circuit stated:  “Reject the notion that only conduct that occurs inside the physical workplace can be actionable, especially in light of the ubiquity of social media and the ready use of it to harass and bully both inside and outside of the physical workplace.”

9. Retaliatory harassment may still be challenged as unlawful retaliation “even if it is not sufficiently severe or pervasive to alter the terms and conditions of employment by creating a hostile work environment.”

The EEOC explains that the legal standards for hostile work environment and retaliation are different. The anti-retaliation provisions prohibit a broader range of conduct, namely, “anything that might deter a reasonable person from engaging in protected activity.”

Steps for implementing the new guidance

While this guidance is not legally binding, it serves as a resource for the courts as well as EEOC staff and staff of other agencies that investigate, adjudicate and litigate harassment claims.

Following are six practical steps employers should take to effectively implement the new EEOC guidance:

1. Assess and update policies

Conduct a thorough review of existing anti-harassment policies. Ensure they are clear, comprehensive, and inclusive, and reflect the expanded definitions and provisions for remote work. Communicate these policies to all employees.

2. Develop and deliver training programs

Design and implement training programs that cover the new guidance. Be sure your training recognizes the various forms of harassment, promotes a respectful workplace culture, and ensures that all employees know how to report and respond to incidents. Training should be ongoing and may be tailored to different roles within the organization.

3. Establish robust reporting mechanisms

Create multiple, accessible reporting channels, including anonymous options. Ensure employees know how to report harassment and feel confident that their concerns will be addressed promptly and fairly.

4. Ensure prompt and fair investigations

Develop procedures for conducting thorough, timely, and impartial investigations. Maintain confidentiality and protect against retaliation so employees feel safe coming forward. Clearly communicate the investigation process to all employees.

5. Foster an inclusive workplace culture

Promote diversity, equity, and inclusion initiatives. Encourage open communication, provide support for employees from diverse backgrounds, address any issues promptly, and encourage management to lead by example.

6. Monitor and evaluate progress

Regularly assess the effectiveness of your anti-harassment prevention and response measures. Gather feedback from employees, track reported incidents, and make necessary adjustments to policies and practices.

If you have any questions or need help implementing the new EEOC guidance, as well as your state and local laws that prohibit workplace harassment, give us a call at 973.787.8442, or schedule a Strategy Session today.

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This article is for informational purposes only. It is not offered as legal advice, nor is it intended to create an attorney-client relationship with any reader. Consult with competent local employment counsel to determine how the matters addressed here may affect you.