On Sept. 29, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued proposed updated workplace harassment guidance (the “Proposed EEOC Guidance”) for the first time since 1999.   The Proposed EEOC Guidance, which is open for public comment until Nov. 1, focuses on recent legal developments and provides guidance on harassment in a remote work environment, reproductive rights, gender identity, and the #MeToo movement. These policy initiatives come less than two months after Kalpana Kotagal was sworn in as Commissioner of the EEOC and reflect the expected employee-friendly guidance we previously discussed here. Below are some of the key updates for employers:

Sexual Harassment Definition

The Proposed EEOC Guidance broadens the definition of sexual harassment to include pregnancy, childbirth, and other “related medical conditions,” including lactation and reproductive choices such as abortion or contraception decisions.  

Additionally, reflecting the Supreme Court’s decision, in Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1747 (2020), sexual harassment now encompasses harassment based on an employee’s sexual orientation or gender identity. Examples of this type of harassment include the intentional and reoccurring use of a name or pronoun that is inconsistent with an employee’s gender identity or prohibiting an employee’s access to a sex-segregated area or bathroom consistent with their gender identity.

Virtual Harassment

In light of an increase in remote work, the guidance provides confirmation that harassment may occur “virtually.” Employers should be aware that any communications that occur on a “work related system” such as company email, company instant messaging, video conferencing, or social media, are considered a “virtual work environment” and may be the basis of a hostile work environment claim. This includes acts that occur during video conferences such as sexist comments, visible racist imagery, or sexual comments about a bed being near an employee and displayed on a video conference. Moreover, even if communications take place on a private device or personal social media account, an employee may still have a hostile work environment claim if the communication impacts the workplace.  For example, if a coworker posts ethnic epithets on their own social media about an employee, and coworkers or the employee learn about the comment and discuss it at work, then the social media post can contribute to a racially hostile work environment claim.

Guidance for Updating Harassment Policies

One of the best defenses against a harassment claim is for an employer to establish it took “reasonable care” to prevent harassment and to promptly correct workplace harassment. 

The EEOC provides tips for instituting a policy that can aid an employer in demonstrating it took such reasonable care to prevent harassment. At a minimum, a policy must be widely disseminated and comprehensible to all employees regardless of literacy skills or English proficiency. Additionally, the EEOC recommends that employers address the following:

• Define what conduct is prohibited;
• Require that supervisors report harassment when they are aware of it;
• Offer multiple avenues for reporting harassment allowing employees to contact someone other than their harasser;
• Clearly identify accessible points of contact to whom reports of harassment should be made and include contact information; and
• Explain the employer’s complaint process, including the process’s anti-retaliation and confidentiality protections.

For a complaint process to be effective, it should generally contain the following features, at a minimum:

• Provide for prompt and effective investigations and corrective action;
• Provide adequate confidentiality protections; and
• Provide adequate anti-retaliation protections.

Employers must also ensure that employees are properly trained on reporting procedures and the policy itself. As the EEOC points out, even the best anti-harassment policy, complaint procedure, and training will not necessarily establish that the employer has exercised reasonable care to prevent harassment if the employer fails to properly implement the policy.

This guidance comes in the wake of an influx in harassment-related claims since 2018.  Following the public comment period, this guidance is likely to be finalized and employers should ensure their policies are properly updated to reflect the new guidance.  

For more information, please contact attorneys in the Employment and Labor Group at Nelson Mullins.