EEOC Releases Final Enforcement Guidance on Harassment in the Workplace

This article is from the May 2024 issue.

The U.S. Equal Employment Opportunity Commission (EEOC) has released new final guidance on workplace harassment, replacing five previous guidance documents. 

The guidance document addresses how harassment based on race, color, religion, sex (including pregnancy, childbirth, or related medical conditions; sexual orientation; and gender identity), national origin, age (40 or over), disability, or genetic information is defined under EEOC-enforced statutes and the analysis for determining whether employer liability is established. The guidance document is thorough in its explanations and provides relevant examples. The guidance also addresses systemic harassment and provides links to other EEOC harassment-related resources. 

EEOC indicated that the guidance serves as a resource for employers, employees, and practitioners; for EEOC staff and the staff of other agencies that investigate, adjudicate, or litigate harassment claims or conduct outreach on the topic of workplace harassment; and for courts deciding harassment issues. 

In explaining how to evaluate whether harassment violates federal EEO law, the enforcement guidance focuses on the three components of a harassment claim. Each of these must be satisfied for harassment to be unlawful under federal EEO laws.

  • Covered Bases and Causation: Was the harassing conduct based on the individual’s legally protected characteristic under the federal EEO statutes?
  • Discrimination with Respect to a Term, Condition, or Privilege of Employment: Did the harassing conduct constitute or result in discrimination with respect to a term, condition, or privilege of employment?
  • Liability: Is there a basis for holding the employer liable for the conduct?

The EEOC acknowledges that there may be some objections to the guidance and includes an Addendum which offers EEOC responses to major comments received on the Proposed Enforcement Guidance on Harassment in the Workplace.

Employers should seek advice from their legal counsel if/when issues of harassment in the workplace arise.

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