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As it appeared in Law360 Employment Authority
The U.S. Equal Employment Opportunity Commission this week issued its first guidance on workplace harassment since 1999, winning plaudits from lawyers who commended the bias watchdog’s thoroughness, though the agency noted that some hotly contested issues may need to be handled case by case.
The long-awaited enforcement guidance, which was approved by a 3-2 party-line vote of the commission, supersedes the commission’s publications from the 1980s and 1990s and collects information in one place. It addresses topics including remote work, the #MeToo movement and the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, Georgia , which held that sex-based discrimination includes bias involving sexual orientation or gender identity.
David Lopez, a professor at Rutgers Law School and the EEOC’s longest-serving general counsel, said that the guidance has been in the works for a long time and that his experience at the agency taught him that workplace harassment remains a widespread and serious problem. In many cases it’s perpetrated in smaller workplaces, which don’t have big legal departments or even human resources staff — and that’s where this guidance could really make a difference, he said.
“You can see a lot of harassment cases are pretty egregious,” he said, adding that litigation is not the only tool to address that problem. The guidance “was something that was always sort of in the mix at the time, and I think for them to get it out, I think it really is good news.”
Also in its harassment package the agency included a summary of key provisions, a document for employees and a fact sheet for small businesses.
Here are five takeaways from the long-awaited guidance.
It’s “One-Stop Shopping”
Employment lawyers on both sides of the bar praised the EEOC for its thoroughness in building the guidance.
“They made it clear that this is to be viewed as one-stop shopping,” said Littler Mendelson shareholder Barry Hartstein. “So they took all six of their prior guidance documents and tried to basically put it all in one. So I thought that also was commendable. So we now really have one place to go.”
Hartstein added that the document isn’t “monumental” in terms of what it actually says — it just restates the EEOC’s view of the law, he explained — but it’s important that the agency consolidated the resources in one place.
Sharon Perley Masling, a partner at Morgan Lewis, agreed that the breadth of the document is helpful.
“There wasn’t one overarching document regarding ‘harassment law,’ for lack of a better word,” Masling said. “So I think this is the first full compilation of the EEOC’s guidance on these issues.”
And the agency indicated there’s more to come — the agency promised to revamp the administrative paperwork employers fill out when there’s an EEOC charge filed against them, to give them a chance to raise any defenses early in the process with the hope of reducing the burden on all parties.
“To assist employers with potential defenses, including religious defenses … the Commission will revise materials accompanying the Notice of Charge of Discrimination letter and related webpages to identify how employers can raise defenses in response to a charge,” the EEOC said in the guidance.
Masling said she’d keep a close eye on that administrative detail.
If employers “are the recipient of a charge of discrimination, if the EEOC is going to make it easier for employers to explain, if there is a charge without merit or if there are defenses that apply to a given circumstance — if the commission is making it easier for employers to assert those defenses, that is definitely something worth following.”
It May Provide An Angle For Avoiding Arbitration
Shane Seppinni of Seppinni Law, who represents workers, pointed to the EEOC’s explanation in the guidance that the terms “sex harassment” and “sexual harassment” are often, and can be, used interchangeably.
That means “sexual harassment” doesn’t necessarily have to refer to conduct that is sexual in nature, the agency said in one section of the guidance and a footnote — and for Seppinni, that’s huge.
“The number-one takeaway that I think is really great about the guidance is that it makes clear that sexual harassment is more than just overtly sexualized conduct,” he said. “And that’s important just on a societal level, but it’s important also for a number of particular legal reasons.”
Chiefly, he said, that definition may allow a lot of lawsuits alleging sex-based harassment to avoid mandatory arbitration under the 2022 federal Ending Forced Arbitration of Sexual Harassment and Sexual Assault Act.
In its summary of key provisions, a companion document to the guidance, the EEOC also addressed the issue, saying: “Harassing conduct that is based on sex but is not sexualized or sexual in nature, for example calling a woman a sex-based epithet or making sexist comments (such as saying that men do not belong in the nursing profession), may contribute to a hostile work environment because of sex and can violate the law.”
The way Seppinni reads the guidance, he said, anyone stating they’ve experienced harassment based on their sex should be eligible to avoid arbitration under the EFAA.
“And so I think we’re going to find that there are a lot of courts that are exempting disputes from arbitration that a layperson might not immediately think of as quote-unquote ‘sexual harassment disputes’ that, under the law, are sexual harassment disputes,” Seppinni said.
But to him, he said, the document reads that “something over 90 percent of pregnancy discrimination cases in the United States should be exempt from forced arbitration, which is like, a huge win for women, and everybody.”
He acknowledged that the management side would no doubt argue that the intent of the EFAA was limited to addressing workplace sexual misconduct.
“They’re definitely going to make that argument. And we are more than prepared,” Seppinni said. “The chief federal independent executive agency entrusted with enforcing these civil rights laws has unequivocally said that you don’t need overtly sexualized conduct to state a claim of sexual harassment.”
Examples Are Plentiful And Popular
The final guidance includes 77 examples of a wide range harassment scenarios that could arise in the workplace and how the EEOC views them under the law. That’s nearly double the number of examples that appeared in the draft guidance. Many are adapted from existing case law, according to the footnotes.
In an addendum to the guidance, the EEOC said the raft of examples was inspired partly by public comments that requested the agency “add additional examples illustrating how the EEO laws apply to potential harassment in a variety of contexts.”
Experts universally said they appreciated the effort.
“I always think examples are helpful. It shows how the EEOC is thinking about these issues, how they’re going to analyze these issues,” Masling said. “So it’s a great way of just incorporating current case law into the guidance. It also shows how the courts are thinking about these issues.”
Mickey Neuhauser, a member at Epstein Becker Green, highlighted the examples as the thing that most stood out to her about the guidance. The 1999 version didn’t have that benefit, she said.
“It sets out in plain English the expectations of the EEOC,” she said. “It honestly mirrors a lot of, I would say, the guidance we give to our clients when we are counseling them, or when we’re providing training.”
Lopez, the Rutgers professor, also added that the examples are helpful because they can help accommodate a variety of learning styles. He uses them in class, he said.
“I think they’re helpful in terms of going from the conceptual to the tangible, and sort of what it looks like,” he said.
It Digs Into Lesser-Known Concepts
The 2024 guidance covers harassment in a modern telework environment, explaining that misconduct on work-related emails, accounts or devices counts as harassment in the work environment.
Lopez said the guidance, while in the works for a long time, explores new or lesser-known concepts, like intraclass discrimination and remote work.
Intraclass misconduct takes place when a harasser mistreats someone because of a protected characteristic they share. Burrows said Monday that the notion itself is not “new,” but the agency felt it was important to include because of a lack of awareness.
The agency offered several examples of intraclass harassment, including one of an older worker making ageist remarks at a colleague of about the same age, and a situation in which a female employee verbally abuses a woman she works with.
“It’s not really breaking new ground in terms of the courts, but in terms of trying to educate the employer community about the responsibilities and the employees about the rights, I’m glad they included it,” he said.
Seppinni, the worker-side lawyer, said he was gratified to see the explainers on intraclass harassment, because an employer argument he runs into frequently at the motion to dismiss or summary judgment stages of a worker’s suit is that the harasser was of the same protected class as his client. That happens “all the time,” he said.
“They’ll argue something like, ‘Well, that’s because that person determined it wasn’t based on the protected characteristic,'” he said. “And if a judge isn’t familiar with case law, that argument might make sense to them on a gut level. So it’s great that the EEOC has cited to specific case law and then laid out these specific examples saying why that just doesn’t hold a whole lot of water.”
Some Questions Remain
The Democrat-led agency, which passed the guidance in a 3-2 vote along party lines, has received some strong pushback from both inside and out, largely over headline-grabbing issues such as abortion, sexual orientation and gender identity.
Outing or repeatedly misgendering a co-worker can run afoul of federal law, in addition to denying an employee access to a bathroom or other workplace facility that is consistent with their gender identity, the EEOC noted in its guidance. And harassing someone based on their decision to terminate or keep a pregnancy can be sex-based harassment, the agency said.
Many of the comments the agency received involved issues of free speech and religious speech, for example, when it comes to discussing or not discussing someone’s abortion or calling them by the pronoun that matches their gender identity, the EEOC said in an addendum to the guidance.
“The interplay between free speech protections and statutory harassment prohibitions in particular matters can be highly fact-specific, and the Commission will carefully consider these issues as presented on a case-by-case basis,” the agency said in the addendum. “A detailed discussion of free speech principles, however, is beyond the scope of this final guidance.”
The EEOC acknowledged that many of the issues it handles are complex and must be addressed on a case-by-case basis. Experts said they weren’t surprised to see that.
“I think the commission is very cognizant of the fact that in some cases, application of Title VII or the other statutes that they enforce may implicate other rights,” Masling said. “So I think [the] EEOC has been very careful in recognizing that interplay and trying to recognize the religious rights of individuals while also protecting all employees from harassment.”
In a two-page statement dissenting from the guidance, Trump-appointed commissioner Andrea Lucas argued — without evidence — that the agency is endangering women by directing employers to let people use workplace facilities that correspond with their gender identity.
And the House of Representatives’ Education and the Workforce Committee Chairwoman Virginia Foxx, R-N.C., called the guidance “nothing more than a [sic] homage to leftist activists.”
But Littler’s Hartstein said he wasn’t surprised by the fact that the EEOC said it would handle situations case by case.
“The EEOC recognized that this is controversial. The lines are unclear,” he said. “And I think every one of these cases are going to probably have to be looked at on an individual basis.”
–Additional reporting by Anne Cullen. Editing by Amy Rowe and Nick Petruncio.
