EEOC Finalizes New Comprehensive Harassment Guidance

On Monday, the Equal Employment Opportunity Commission (EEOC) finalized its updated, comprehensive guidance on harassment in the workplace. The new guidance replaces several older guidance documents dating back to the 1980s and 1990s.

The guidance covers the full spectrum of harassment issues, providing analysis and examples on protected classes, causation, the distinction between quid pro quo and hostile work environment harassment, liability standards, and systemic harassment. 

The new guidance also provides analysis on sexual orientation and gender identity harassment, areas of harassment law that have developed significantly since the EEOC's previous guidance. Specifically, the guidance confirms that “misgendering” – repeatedly and deliberately using pronouns inconsistent with someone's known gender identity – constitutes unlawful harassment, as does denying access to facilities such as bathrooms and locker rooms that are consistent with the employee's gender identity. The EEOC also provides analysis of situations in which off-duty and social media conduct can constitute unlawful workplace harassment, which can be tricky situations for employers to navigate.

Although the guidance does not have the force of law, it is extremely helpful to employers wanting to understand how the EEOC analyzes harassment claims in a variety of scenarios. The guidance also provides a good resource for attorneys and HR professionals who want a reference for basic harassment concepts and comparator examples when making internal investigation or discipline decisions.