On April 29, 2024, the Equal Employment Opportunity Commission (“EEOC”) issued updated guidance on workplace harassment to address recent legal developments and emerging issues in the workplace.

The EEOC’s new guidance covers the three components of a harassment claim: (1) the covered bases and causation; (2) discrimination respecting a term, condition, or privilege of employment; and (3) liability.  Some of the key highlights are summarized below:

• The guidance explains that Title VII prohibits discrimination, including unlawful harassment, based on race but it can also include harassment based on traits or characteristics linked to an individual’s race, such as the complainant’s name, cultural dress, accent or manner of speech, and physical characteristics, including appearance standards (e.g., harassment based on hair textures and hairstyles commonly associated with specific racial groups).

• Further, the guidance states that although sometimes related to harassment based on race or national origin, color-based harassment due to an individual’s pigmentation, complexion, or skin shade or tone is independently covered by Title VII.

• National origin harassment includes harassment based on traits such as “physical characteristics, ancestry, or ethnic or cultural characteristics (e.g., attire or diet), and linguistic characteristics (e.g., non-English language accent or a lack of fluency in English).” 

• Another key update in the new guidance is that the EEOC expands the list of protected characteristics to include color and genetic information, and clarified that sexual orientation, gender identity, pregnancy, childbirth, and related medical characteristics are all included within “sex” as a protected characteristic.  This position is in line with the principals set forth by the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, Georgia, in which the Court held that sex discrimination, which is prohibited by Title VII of the Civil Rights Act of 1964, includes discrimination on the basis of sexual orientation and gender identity.

• Issues such as lactation, using or not using contraception, or deciding to have, or not to have, an abortion qualify as unlawful harassment if that harassment “is linked to a targeted individual’s sex.”

• The prohibition on religious harassment extends to religious stereotypes and requests for or receipt of religious accommodations in the workplace. Atheists and those without any religious beliefs are also protected from religious harassment. 

• Intraclass harassment, or harassment based on a protected characteristic that is conducted by a member of the same protected class (i.e., age-based harassment conducted by someone who is over 40 years old), is also prohibited under Title VII.

• Harassing conduct that occurs in a virtual work environment can still create a hostile work environment. This includes conduct (written, verbal, or images) conveyed using an “employer’s email system, electronic bulletin board, instant message system, videoconferencing technology, intranet, public website, [and] official social media accounts.”

The final guidance can be found here: https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace.  Along with the final guidance, the EEOC issued several educational resources, including a “Summary of Key Provisions” document, document for employees, and a fact sheet for small businesses.

While the EEOC’s guidance is not legally binding, employers should familiarize themselves with the documents in their entirety, as it lays out a roadmap for how the EEOC will enforce the laws.  Should you have any questions regarding the EEOC’s new guidance, please contact Ali Law Group.

HRtelligence was created by the team at Ali Law Group, LLC.  Should you have any questions or need assistance, please contact Ali Law Group.

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