The EEOC has finalized its new workplace harassment guidance

In October 2023, the U.S. Equal Employment Opportunity Commission voted to propose new Guidance on workplace harassment, the first voted document the EEOC had issued on harassment since its “Enforcement Guidance on Vicarious Liability for Unlawful Harassment by Supervisors” in 1999.

Yesterday, after receiving approximately 38,000 comments on its proposal, the EEOC published its final Guidance on harassment in the workplace, “Enforcement Guidance on Harassment in the Workplace.”

According to the EEOC, the new Guidance includes over 70 examples illustrating 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 by coworkers, supervisors, customers, contractors, and other third parties. Plus, the Guidance addresses the growth of virtual work environments and the increasing impact of digital technology and social media on workplace harassment.

For example, the EEOC notes that “conduct that can affect the terms and conditions of employment, even if it does not occur in a work-related context, includes electronic communications using private phones, computers, or social media accounts if it impacts the workplace…However, postings on a social media account generally will not, standing alone, contribute to a hostile work environment if they do not target the employer or its employees.”

If you’re not keen on reading all 189 pages of Guidance just yet, you can start with this Summary of Key Provisions. In it, the EEOC provides general information on workplace harassment and articulates liability standards in workplace harassment cases.

The decision to publish the final Guidance was not unanimous. Two EEOC Commissioners dissented. One of them, Commissioner Andrea Lucas, took issue with “the guidance’s assault on women’s sex-based privacy and safety rights at work, as well as on speech and belief rights,” claiming that “the EEOC ignores biological reality” and “disregards decades of safeguarding principles for women and girls.” You can read her entire statement here.

For more EEOC Harassment Resources, check out these:

• Enforcement Guidance on Harassment in the Workplace: https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace
• EEOC Harassment Home Page: https://www.eeoc.gov/harassment
• EEOC Sexual Harassment Home Page: https://www.eeoc.gov/sexual-harassment
• Small Business Fact Sheet: Harassment in the Workplace: https://www.eeoc.gov/small-business-fact-sheet-harassment-workplace
• Questions and Answers for Employees: Harassment at Work: https://www.eeoc.gov/questions-and-answers-employees-harassment-work
• Youth@Work Harassment FAQs: https://www.eeoc.gov/youth/harassment-faqs-1#
• Promising Practices for Preventing Harassment: https://www.eeoc.gov/laws/guidance/promising-practices-preventing-harassment
• Promising Practices for Preventing Harassment in the Federal Sector: https://www.eeoc.gov/federal-sector/reports/promising-practices-preventing-harassment-federal-sector
• EEOC’s Select Task Force on the Study of Harassment in the Workplace, Report of Co-Chairs Chai R. Feldblum & Victoria A. Lipnic, https://www.eeoc.gov/select-task-force-study-harassment-workplace (including recommendations, checklists, chart of risk factors for employers, and link to promising practices)