Don’t get sued! The EEOC just changed the rules on harassment

A lot has happened since 1999—the last time the EEOC issued comprehensive guidance on workplace harassment—so the need for updated guidance on Title VII’s protections is urgent, according to the EEOC. The guidance is effective immediately.

The stats tell the story: For the five fiscal years ending with FY 2023, more than one-third of the charges of employment discrimination it received included an allegation of unlawful harassment based on race, sex, disability, or another protected characteristic.

Here’s an overview.

What’s a hostile work environment?

Harassment crosses the legal line when an employee’s harassing conduct involves an employment change or creates a hostile work environment.

“Hostile work environment” is a red-hot phrase and is easily misunderstood. It exists when harassing conduct is based on a legally protected characteristic (e.g., race, color, religion) and is so severe or frequent that a reasonable person in the employee’s position would find it abusive. It generally doesn’t include a boss who’s a jerk and treats everyone horribly.

While Title VII has always covered sex, the guidance expands sex into sexual orientation, gender identity, pregnancy, childbirth, or related medical conditions. Reflecting on a series of court decisions, a hostile workplace can be created by the repeated and intentional use of a name or pronoun inconsistent with an employee’s known gender identity (i.e., misgendering) or denying access to a bathroom or other sex-segregated facility consistent with the employee’s gender identity.

The guidance also expands the workplace by noting that virtual work environments can contribute to a hostile workplace. How: Sexist or racist imagery is visible in an employee’s workspace during a video meeting, or ageist or ableist comments are typed in a group chat. A hostile workplace can be created in a non-work context if employees’ use of private phones, computers, or social media impacts the workplace.

Additional examples of harassing conduct include the following:

• Saying or writing an ethnic, racial, or sex-based slur or forwarding an offensive or derogatory “joke” email
• Threatening or intimidating an employee because of their religious beliefs or lack of religious beliefs, or mimicking or mocking an employee’s religious garments or displays
• Making comments based on stereotypes about older workers
• Asking intrusive questions about a person’s sexual orientation, gender identity, gender transition, or intimate body parts
• Groping, touching, or otherwise physically assaulting an employee.

Are there circumstances where Title VII wouldn’t be violated?

Unwelcome teasing, mistreatment, or rude behavior toward an employee doesn’t violate Title VII unless it occurs because of a protected characteristic. In addition, not all harassing conduct runs afoul of Title VII, even because of a legally protected characteristic.

This isn’t contradictory. According to the EEOC, if an employee experiences harassment but the evidence doesn’t show the harassment was based on a protected characteristic, Title VII wouldn’t apply.

Example: Jack alleges he was harassed based on his national origin and color by his co-worker, Harry. Basis of his allegation: Harry became increasingly hostile and rude, throwing paper at him, shoving him in the hall, and threatening to harm him physically.

Harry’s misconduct started shortly after a basketball game, during which Jack, the team’s captain, benched him. No evidence linked Harry’s threats and harassment to Jack’s national origin or color; Harry was just a lousy basketball player. Jack can’t prove that Harry’s misconduct subjected him to harassment because of a protected characteristic.

Bottom line: Context matters.

See you in court

Attorneys general from 19 states have sued the EEOC, claiming it acted beyond its jurisdiction in issuing the guidance—it acted arbitrarily and capriciously—insofar as the expanded definition of sex to include gender identity is concerned.

The guidance remains in effect until the court enjoins the EEOC from enforcing it.