EEOC Issues Final Updated Guidance on Workplace Harassment

On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) published its updated enforcement guidance on workplace harassment. The long-awaited updated guidance comes six years after its previous attempts to issue guidance stalled and nearly twenty years after the agency last published guidance on workplace harassment. In that time, there have been notable legal developments, including the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, which held that employees are protected from discrimination based on sexuality or gender identity.

Acting under its authorization to enforce federal employment discrimination laws that protect employees from harassment based on race, color, religion, sex (including sexual orientation, transgender status, and pregnancy), national origin, disability, age (40 and older), or genetic information, the EEOC’s guidance “updates, consolidates, and replaces the agency’s five guidance documents issued between 1987 and 1999, and serves as a single, unified agency resource on EEOC-enforced workplace harassment law.”

In a press release, the EEOC stated that the final guidance “reflects the EEOC’s commitment to protecting persons who are particularly vulnerable and persons from underserved communities from employment discrimination.”

Key Updates to the EEOC’s Guidance on Workplace Harassment

Among the final published guidance are the following notable updates:

• Specific protections for LGBTQ+ employees’ rights in the workplace.
• Confirmation that sex-based harassment includes harassment based on pregnancy, childbirth, or reproductive decisions (including decisions about abortion).
• Over 70 examples of unlawful harassment to reflect a broad scope of workplace situations.
• Recognition that harassment in the workplace can be by coworkers and supervisors, as well as by customers, contractors, and other third parties.
• Acknowledgement of the impact of evolving and expanding digital technology, including social media, on the work environment.

Takeaways for Employers

In light of the updated guidance, employers should:

• Consider updating policies. The new guidance includes specific references to harassment based on sexual orientation and gender identity, such as misgendering or “outing” an employee. Accordingly, employers may want to review their current policies to explicitly include gender identity as a protected characteristic in their equal employment opportunity and anti-harassment policies.
• Provide robust training. Employers may also want to update their training programs to incorporate some of the updated examples of workplace harassment provided in the guidance. Examples specifically highlighting protected categories that employees often overlook is helpful in reenforcing that that an employer will not tolerate harassment of any kind.
• Promote an inclusive culture. Employers should consider ways to promote inclusivity and prevent harassment in their workplace culture. For instance, employers can allow employees to add their preferred pronouns to email signatures and remote communication tools and consider including training for supervisors and managers on social and cultural competencies.
• Consider jurisdiction-specific requirements. For instance, the recently enacted Chicago Human Rights Ordinance requires all Chicago employers to provide the following anti-harassment trainings on an annual basis:
  • One hour of sexual harassment prevention training for all employees
  • One additional hour of sexual harassment prevention training for supervisors and managers
  • One hour of bystander training for all employees

LP offers multiple training programs that meet the Chicago and Illinois requirements and incorporate the updated EEOC guidance to ensure employers are taking appropriate preventive measures to ensure a productive and safe workplace. If you would like to schedule a training, please reach out. A member of our Employment & Executive Compensation team would be happy to speak with you.