Who Says You Can’t Teach an Old Dog New Tricks? The EEOC Updates Decades-Old Harassment Guidance with Fresh Takes on Timeless Workplace Problems

On April 29, 2024, the Equal Employment Opportunity Commission (“EEOC”) released new guidance on the general topic of harassment in the workplace. Per the EEOC’s press release, the new guidance “updates, consolidates, and replaces” five previous documents issued between 1987 and 1999.

The updated guidance encompasses developments in the legal landscape that have occurred in the years since the EEOC’s last guidance was issued, in addition to those tried-and-true employment law concepts pertaining to workplace harassment. Some of the topics making their first appearance concern discrimination on the basis of sexual orientation and gender identity in the wake of the U.S. Supreme Court’s Bostock case, such as the issue of misgendering (consistently and intentionally using an incorrect name or pronoun for a person), outing an individual’s true sexuality, and restroom access. The guidance also touches on the intersection of anti-harassment measures and religious accommodations, and explains that employers should accommodate an employee’s sincerely held religious belief at work, unless doing so would create a hostile work environment.

The guidance provides numerous examples to help illustrate what constitutes harassment (and what doesn’t), and the Commission made efforts to modernize the documentation, which now touches on workplace issues such as harassment in the realm of remote work, noting the potential for the creation of a hostile work environment even within a virtual working environment. The EEOC also included a section of responses to major comments it received during the public notice and comment period, which occurred last fall. In that section, the EEOC took steps to explain how it has not exceeded its statutory authority in its section on harassment that is based on gender identity, how it approached the totality-of-circumstances test, and the interplay between federal statutes prohibiting harassment and other legal rights, among several others. The document is very informative, particularly in its examples, and it provides employers with a helpful and comprehensive overview of many of the laws enforced by the EEOC.

While agency guidance such as this does not have the force and effect of a federal law, in many scenarios, it can provide a roadmap for employers seeking to ensure the utmost compliance with federal regulations, and as a preview of issues the EEOC is likely to ramp up focus on in the coming years. The guidance is lengthy and comprehensive, but when used in conjunction with the EEOC’s other guidance documents, and in consultation with in-house or external employment law legal counsel, it can serve as a valuable resource for all employers.

If you have any questions about the EEOC’s Guidance on Harassment in the Workplace, please contact Katie Campbell or another member of Crowe & Dunlevy’s Labor & Employment Practice Group.


Associated People:

Katie Campbell

Practice Area:

Labor & Employment