On October 2, 2023, the Equal Employment Opportunity Commission (EEOC) issued proposed updated harassment guidance that provides a more comprehensive and expansive definition of harassment, clarifies the standards that employers must meet to avoid liability for harassment, and significantly expands employer liability for harassment in the workplace.
Key Changes in the Proposed Guidance
The updated proposed guidance reflects notable changes in law, including the Supreme Court’s decision in Bostock v. Clayton County, the #MeToo movement, and emerging issues, such as virtual or online harassment and how to evaluate whether harassment violates federal law by focusing on three components of a harassment claim: (1) covered bases and causation, (2) discrimination concerning a term, condition, or privilege of employment, and (3) liability. The proposed guidance includes but is not limited to:
- Clarification that pregnancy and childbirth can be included in “sex-based” harassment;
- Examples of discrimination based on sexual orientation and gender identity, such as intentional and repeated misgendering; and
- Numerous updated examples reflect a wide range of scenarios that incorporate updates throughout current case law on workplace harassment and address the proliferation of virtual/online harassment through the use of digital technology and how social media postings and other online content can contribute to a hostile work environment.
After reviewing public input from the comment period which ended on November 1, the Commission will consider appropriate revisions before finalizing the guidance. If finalized, this guidance will supersede several earlier EEOC guidance documents.
The proposed EEOC harassment guidance is likely to have a significant impact on employers and the need to ensure that they take prompt and effective corrective action in response to complaints of harassment. As a result, employers should carefully review the proposed guidance to assess its impact on their business operations and to take steps to comply with the proposed guidance, even though it is not yet final. Specifically, employers should:
- Review and update their anti-harassment policies and procedures to ensure that they comply with the proposed guidance;
- Establish a confidential complaint process for employees to report harassment;
- Provide training to all employees on the proposed guidance and their rights and responsibilities under the law;
- Create a culture of respect and zero tolerance for harassment in the workplace;
- Implement a robust system for investigating and responding to complaints of harassment; and
- Reevaluate their investigation and disciplinary procedures for harassment claims to ensure that they comply with the proposed guidance.
How HR Works Can Help
HR Works can assist by providing a legally reviewed employee handbook which includes a Harassment and Discrimination Prevention policy, in addition to assisting with annual harassment training and conducting investigations. Current Virtual Helpline clients may contact the Virtual Helpline for additional information and HR Strategic Services clients may contact their designated HR Consultant.
Non-HR Works clients may reach out to learn more about HR Works’ services including employee handbooks, investigation support, customized training, and our LMS system by visiting our website and completing a “Contact Us” form or calling us toll-free at 1-877-219-9062.