EEOC Updates Guidance on Anti-Harassment Protections

Posted on: May 7, 2024

The U.S. Equal Employment Opportunity Commission (EEOC) has published new guidance on federal laws prohibiting harassment in the workplace. This is the first update to the EEOC’s guidance on prohibiting harassment since 1999. While guidance doesn't carry the same weight as a regulation or law, it does demonstrate how the EEOC intends to enforce federal laws.

The Details

Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act (ADEA) and the Genetic Information Nondiscrimination Act are federal laws that prohibit harassment in the workplace based on race, color, religion, sex, pregnancy (including childbirth and related medical conditions), sexual orientation, gender identity, national origin, disability, age (40 or older), or genetic information.

With the exception of the ADEA, these federal laws cover employers with 15 or more employees. The ADEA covers employers with 20 or more employees. Many states and local jurisdictions have their own anti-harassment laws that cover smaller employers.

The EEOC’s new guidance on federal protections from harassment in the workplace builds on the agency’s previous work, addresses legal developments and covers emerging issues.

For example, under the section on harassment based on sexual orientation and gender identity, the EEOC states that unlawful harassment based on these two characteristics includes but isn’t limited to:

  • Epithets regarding sexual orientation or gender identity;
  • Physical assault; 
  • Outing (disclosure of an individual’s sexual orientation or gender identity without permission); 
  • Harassing conduct because an individual doesn’t present in a manner that would stereotypically be associated with that person’s sex;
  • Repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or
  • The denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.

Under the section on harassment based on pregnancy, childbirth or related medical conditions, the EEOC states that this type of unlawful harassment “can include issues such as lactation; using or not using contraception; or deciding to have, or not to have, an abortion.”

Harassment based on these situations or decisions generally would be covered if it is linked to a targeted individual’s sex including pregnancy, childbirth or related medical conditions, according to the guidance.

The guidance also:

  • Includes more than 70 scenarios illustrating unlawful harassment, including situations involving older workers, immigrant workers, and survivors of gender-based violence.
  • Illustrates how employees may be subjected to unlawful harassment not only by co-workers or supervisors, but also by customers, contractors, and other third parties.
  • Addresses the growth of virtual work environments and the increasing impact of digital technology and social media on how harassment occurs in the work environment.

Next Steps

Employers with 15 or more employees should:

  • Read the guidance in full.
  • Determine whether changes are needed to any policies or practices.
  • Train supervisors on the updated guidance.