EEOC Guidance on Harassment: What to Know About the Recent Update
Harassment of any kind is inappropriate conduct in the workplace. Full stop. However, determining whether or not harassment rises to the level of illegal discrimination protected by federal and state law is a more nuanced issue. This determination depends on a variety of factors, including the size of a workplace, the type of conduct or speech at issue, and the protected classification of the employee alleging harassment or discrimination (along with the makeup of the greater workplace).
The parameters surrounding illegal discrimination and harassment in the workplace have historically been conferred by statute, such as Title VII of the Civil Rights Act of 1964, with associated details and standards defined in corresponding case law. In addition, the Equal Employment Opportunity Commission (EEOC) has issued select federal guidance on adhering to Title VII and other discrimination statutes. This guidance provides greater clarity on interpretation and compliance.
The 2024 guidance “Enforcement Guidance on Harassment in the Workplace” (the “Guidance”) was the most recent analysis from the EEOC on Title VII in decades, detailing what factors should be reviewed in identifying whether conduct was actionable, what constituted causation, and how to determine liability for alleged discriminatory conduct. On January 22, the EEOC voted 2-1 to rescind the Guidance.
The rescission of the Guidance arguably places employers and employees in a more uncertain position. More specifically, claimants are required to exhaust their administrative remedies by filing with the EEOC (before filing suit). Without the Guidance, both employers and employees have less clarity on what the EEOC believes constitutes discrimination and harassment.
Nonetheless, I recommend that employers and employees remember that state and federal discrimination law still applies despite the rescission of the Guidance. Therefore, employers should continue to maintain and enforce anti-harassment policies, investigating all complaints received. Similarly, I recommend that employees continue to document and report issues of discrimination, given the existing statutory and precedential nature protecting against discrimination in the workplace.
Feel free to reach out to me to discuss the EEOC’s recent actions or your workplace discrimination concerns.
Theodora Stringham focuses her practice on bringing solutions-oriented representation and zealous advocacy to complex issues impacting individuals, organizations, and businesses. Ms. Stringham seeks to understand clients’ concerns and provide thorough and strategic options aimed at achieving their goals. She has been recognized for her work in the Real Estate, Labor and Employment, and Commercial Litigation practice areas, providing counseling and litigation support for a wide variety of concerns.