EEOC Proposes Updated Workplace Harassment Guidance to Protect Workers

Following a majority vote, the U.S. Equal Employment Opportunity Commission (EEOC) invites the public to comment on its proposed “Enforcement Guidance on Harassment in the Workplace.” The Federal Register today posted for public inspection  and, on Monday October 2 will publish, the EEOC’s notice of this proposed guidance and a request for comment. The proposed guidance is available for review at https://www.eeoc.gov/proposed-enforcement-guidance-harassment-workplace, and the public is invited to submit comments and view the document via the federal e-regulation website at https://www.regulations.gov/document/EEOC-2023-0005-0001 until November 1.

The EEOC first released a proposed guidance on workplace harassment for public comment in 2017, but it was not finalized. 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.

The proposed guidance explains the legal standards and employer liability applicable to harassment claims under the federal employment discrimination laws enforced by the EEOC. These laws protect covered 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.

Specifically, it provides numerous updated examples to reflect a wide range of scenarios, incorporates updates throughout on current case law on workplace harassment, and addresses the proliferation of digital technology and how social media postings and other online content can contribute to a hostile work environment.

“Preventing and addressing harassment in America’s workplaces has long been a key priority for the EEOC, and this guidance will provide clarity on new developments in the law and build on the Commission’s previous work,” said EEOC Chair Charlotte A. Burrows. “The Commission looks forward to receiving public input on the proposed enforcement guidance.”

Harassment remains a serious workplace problem. Between fiscal years 2016 and 2022, more than one-third of charges received by the EEOC included an allegation of harassment. The Commission has identified two harassment-related national enforcement priorities in the EEOC’s new Strategic Enforcement Plan: preventing and remedying systemic harassment, and protecting vulnerable workers and people from underserved communities from harassment.

The EEOC’s work to prevent and address harassment in America’s workplaces is reflected in additional EEOC resources. On April 20, 2023, the EEOC issued Promising Practices for Preventing Harassment in the Federal Sector, a technical assistance document which provides practical tips for preventing and addressing harassment within the federal civilian workforce. In 2017, the EEOC issued a technical assistance document, Promising Practices for Preventing Harassment based on findings by the Select Task Force on the Study of Harassment in the Workplace established in 2015. In June 2016, former Commissioners Chai R. Feldblum and Victoria A. Lipnic presented their Report of the Co-Chairs of the Select Task Force on Harassment in the Workplace with findings and recommendations about harassment prevention strategies.