New England Biz Law Update
The U.S. Equal Employment Opportunity Commission (EEOC) has published a final guidance entitled, “Enforcement Guidance on Harassment in the Workplace.”
This is the first time the workplace harassment guidance has been updated since 1999.
Since then, significant changes in the law have occurred, including new issues such as remote work and online harassment and the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, where the Court held that Title VII protects employees against discrimination because of sexuality or gender identity.
The new guidance updates, consolidates, and replaces the agency’s five guidance documents issued between 1987 and 1999, and serves as a single resource on EEOC-enforced workplace harassment law.
Before issuing the final guidance, the EEOC considered the substantial number of comments it received, numbering 38,000 since the fall of 2023.
“The EEOC’s updated guidance on harassment is a comprehensive resource that brings together best practices for preventing and remedying harassment and clarifies recent developments in the law,” said EEOC Chair Charlotte A. Burrows in a statement. “The guidance incorporates public input from stakeholders across the country, is aligned with our Strategic Enforcement Plan, and will help ensure that individuals understand their workplace rights and responsibilities.”
Response to harassment complaints
Between fiscal years 2016 and 2023, more than one-third of all discrimination charges received by the EEOC included an allegation of harassment based on race, sex, disability, or another characteristic. Also, since fiscal year 2018, harassment has been alleged in over half of federal sector equal employment opportunity complaints.
In addition, among the 143 merits lawsuits that the EEOC filed in fiscal year 2023, approximately 35% of those cases included an allegation of harassment.
The new guidance includes more than 70 examples of unlawful harassment, including situations involving older workers, immigrant workers, and survivors of gender-based violence. It also illustrates how employees may be subjected to unlawful harassment not only by coworkers or supervisors, but also by customers, contractors, and other third parties.
Further, the guidance addresses the expanded use of remote work environments and the increasing impact of digital technology and social media on harassment in the workplace. Along with the final guidance, the EEOC issued a “Summary of Key Provisions” document, a questions-and-answers document for employees, and a fact sheet for small businesses.
