Employment / 4 min read
The Equal Employment Opportunity Commission (EEOC) recently released a new guidance on workplace harassment. This guidance clarifies what could constitute workplace harassment, including four takeaways all employers should be aware of:
- Sexual orientation and gender identity are covered under sex-based harassment.
- Context is a factor in determining harassment.
- A hostile workplace can exist remotely or virtually.
- Single incidents can create a hostile workplace.
Per the EEOC, for harassment to be unlawful, it must meet three criteria. First, it must be based on a protected characteristic. Second, it needs to be severe or pervasive enough to create a hostile work environment. Third, it must be something for which the employer can be held liable.
Determining whether a hostile work environment exists involves considering all circumstances. This includes the frequency and severity of the conduct, whether it's physically threatening or humiliating, if it unreasonably interferes with work performance, and its effect on the employee's psychological well-being. Importantly, the EEOC guidance emphasizes that a single extremely serious incident can be enough to create a hostile environment.
The guidance explains the extent of employer liability depends on the status of the harasser. For harassment by high-level executives (considered proxies or alter egos of the company), the employer is automatically liable. When supervisors are involved, the employer is automatically liable if the harassment includes a tangible employment action. Without such action, the employer can raise an affirmative defense. For harassment by coworkers or non-employees, the employer is liable if it was negligent in preventing or correcting the behavior—i.e. the employer knew or should have known about the harassment and failed to take prompt and appropriate action.
In cases of supervisor harassment without tangible employment action, employers can avoid liability through an affirmative defense. To succeed, they must prove they took reasonable care to prevent and promptly correct harassment, and that the employee unreasonably failed to take advantage of preventive or corrective opportunities.
Sexual orientation and gender identity are covered under sex-based harassment
The first takeaway for employers is that harassment based on sexual orientation and gender identity is covered under sex-based harassment. This means by way of examples that harassment can include outing an employee’s sexual orientation or gender identity without their permission, repeatedly and intentionally using the wrong pronouns, and denying an employee access to a bathroom consistent with their gender identity.
Context is a factor in determining harassment
Next, employers should know that harassment does not need to be explicitly based on a protected characteristic - context matters in determining whether conduct is discriminatory. One example the EEOC provides is the phrase “you people”. Depending on the context, tone, inflection, local custom, and historical usage, that phrase could be extremely offensive and create a hostile work environment.
A hostile workplace can exist remotely or virtually
Harassment can happen in remote and virtual work environments, recognizing evolving workplace realities. The “workplace” is not just the physical office or job site. In today’s world, the “workplace” is evolving to anywhere work can be conducted. The EEOC guidance notes that employers must understand that a hostile workplace can exist due to statements, imagery, or actions made in videoconferences, emails, or work chats. For example, on videocalls offensive imagery in the background of a supervisor’s house may create a hostile work environment. Also, making sexual comments about an employee’s bed being near to him during a videocall could also be harassment.
Single incidents can create a hostile workplace
Lastly, it is important to be aware that single incidents can give rise to a hostile workplace. While hostile environment claims can be the result of multiple instances over time, the EEOC has identified incidents that can create a hostile environment after one incident. Some examples include: sexual assault or sexual touching of an intimate body part; physical violence or the threat of physical violence; the display of symbols of violence or hatred, such as a swastika, an image of a Klansman’s hood, or a noose; the use of disparaging animal imagery, such as comparing an employee to a monkey, ape, or other animal; a threat to deny job benefits for rejecting sexual advances; and the use of the “n-word” by a supervisor in the presence of a Black subordinate. If a single incident of this nature occurs, the employer may need to terminate the perpetrator to vitiate the hostile environment created by the single incident.
As of now, one aspect of the EEOC guidance has sparked controversy: its treatment of harassment based on sexual orientation and gender identity. Within weeks of the release of the EEOC guidance, 19 states, including Texas, sued to block the guidance. The argument is that the EEOC lacks authority to create new protections not authorized by Congress.
The challengers want courts to enjoin the enforcement of the gender identity portions of the guidance. Given that a Texas court previously vacated similar EEOC guidance in 2022, there is a real possibility the new EEOC guidance will face legal challenges While this legal dispute is ongoing, it highlights the ongoing tension between evolving federal interpretations of anti-discrimination laws and some states' resistance to these changes. It is a stark reminder of the complex landscape employers must navigate when addressing workplace harassment and discrimination