#MeToo Legacy Leads to Expansive EEOC Proposed Guidance on Harassment

Against the backdrop of the #MeToo movement, the Supreme Court’s expansion of sex discrimination to include sexual orientation discrimination, and the ever changing work environment (including the proliferation of remote work), the Equal Employment Opportunity Commission (“EEOC”) recently proposed enforcement guidance on discrimination and harassment in the workplace. Updating its prior (unfinalized) proposed guidance from 2017, this proposed guidance broadens the protected classes protected from harassment in the workplace, defines conduct constituting harassment, and outlines how to evaluate whether alleged harassment violates Federal Equal Employment Opportunity (“EEO”) law.

Key Changes

The new EEOC guidance proposes a three-step analysis for determining whether alleged harassment violates EEO law. When evaluating conduct, employers should consider:

  1. Was the conduct based on the individual’s protected status under federal EEO law?
Harassment is covered by EEO laws if it is based on an employee’s legally protected status. The proposed guidance broadens the categories of protected status. For example, the EEOC followed the Supreme Court’s decision in Bostock v. Clayton County, expanding sex-based discrimination or harassment to include discrimination or harassment based on sexual orientation and gender identity. Examples of discrimination or harassment in the guidance includes: “epithets regarding sexual orientation or gender identity;” misgendering (use of a name or pronoun contrary to the individual’s preferences); and denial of access to a bathroom consistent with the individual’s gender identity. The proposed guidance also expands sex-based harassment to include harassment based on pregnancy, childbirth, and related conditions such as lactation. The EEOC further states that harassment can be “based on a woman’s reproductive decisions, such as decisions about contraception or abortion.”
The proposed guidance also outlines factors used to determine whether alleged harassment is based on an employee’s protected status, including stereotyping, differential treatment, context, and even non-harassing conduct linked to other harassing conduct. Harassment can also include intersectional harassment based on overlap between one or more protected characteristics.

  1. Does the harassing conduct affect a term, condition, or privilege of employment?
An employer may be liable for violations of EEO laws if the employee can link the alleged harassment to a change in the terms or conditions of employment. A change in terms or conditions of employment may include a “hostile work environment.”

The EEOC considers various factors in determining whether a hostile work environment exists, including whether the conduct was both objectively and subjectively hostile, its severity, whether it was based on a single incident, whether the conduct was unwelcome, and the pervasiveness of the conduct.  

Alleged harassment that does not change the terms or conditions of employment may still be actionable if it meets the severe or pervasive test, meaning the conduct is more than merely offensive, but not enough to cause psychological harm. (Note that under New York State law, unlawful harassment does not need to be “severe or pervasive.” It merely needs to “rise above the level of what a reasonable victim of discrimination . . . would consider petty slights or trivial inconveniences.”) 

The proposed guidance also recognizes that harassment can occur in a virtual work environment and via an employer’s communication systems (i.e., email, instant messaging, videoconferencing technology, intranet, public website, and/or social media accounts). The proposed guidance provides the following examples: sexist comments made during a video meeting; racist imagery that is visible during a video conference; and race or sex-based jokes distributed via email.

  1. What is the employer’s liability for a harasser’s conduct?
The proposed guidance identifies four different methods to hold an employer liable for harassment in the workplace:
  • If the harasser is an alter ego or proxy of the employer (e., a high-ranking company official), then the employer is automatically liable.
  • If the harasser is a supervisor, but not an alter ego or proxy of the employer, and the hostile work environment includes tangible action, then the employer is vicariously liable.
  • If the harasser is a supervisor, but not an alter ego or proxy of the employer, and the hostile work environment does not include tangible action, then the employer may limit liability or damages if it can prove (1) it acted reasonably to prevent and promptly correct the harassing behavior, and (2) the complaining employee unreasonably failed to use the employer’s complaint procedure or take steps to avoid or minimize the harassment.
  • If the harasser is any other employee not listed above, then the employer is liable if it was negligent in failing to act reasonably to prevent or take corrective action when it knew, or should have known, of the harassment.


Moving forward

The proposed guidance does not yet have the “force and effect of law,” but it provides valuable insight into the EEOC’s interpretation, and potential future enforcement, of workplace discrimination and harassment laws. The EEOC is accepting comments on the proposed guidance until November 1, 2023, after which it will presumably issue final guidance.

Employers should review their anti-discrimination and anti-harassment policies and training materials to ensure compliance with applicable federal, state and/or local laws, and prepare to ensure compliance with something similar to the EEOC’s proposed guidance. 

Click here to learn about HSE’s Preventing Discrimination and Harassment in the Workplace program. This on-demand and subscription-based program, written and produced by HSE Labor and Employment attorneys is compliant with New York State and New York City’s training requirements. It provides administrators with time saving functions such as easy employee registration options, and real-time user engagement status and reports.

Harter Secrest & Emery’s Labor and Employment attorneys will continue to monitor new developments regarding the guidance and provide updates in future LEGALcurrents.

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