EEOC Releases Harassment Guidance

The U.S. Equal Employment Opportunity Commission (EEOC) released draft enforcement guidance for workplace harassment on September 30, 2023. The public will be able to view and comment on the guidance until November 1, 2023. The release comes six years after an attempt during former President Trump’s administration to update the EEOC’s previous guidance.

The newly released guidance includes updates prompted by the:

• #MeToo movement
• COVID-19 pandemic
•  2020 United States Supreme Court decision Bostock v. Clayton County, Georgia which held that sex discrimination includes gender orientation and sexual identity bias

Readers are essentially given a primer on the legal analysis the EEOC performs when investigating a harassment claim. The guidance focuses on the prima facie elements of a harassment claim, examining conduct, causation and liability. Readers will find insight on and examples for when alleged conduct violated Equal Employment Opportunity (EEO) laws, with hypotheticals discussing whether alleged conduct:

• Was based on a federally protected characteristic
• Resulted in discrimination related to a term, condition, or privilege of employment  
• Provides a basis for holding the employer liable for the conduct

To read the proposed workplace harassment enforcement guidance, please click here. If you have any questions on the EEOC’s guidance or workplace harassment prevention, please contact Lisa M. Scidurlo.