Navigating Workplace Harassment: 2024 EEOC Guidelines Explained

On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) unveiled its updated guidelines on workplace harassment, marking the first comprehensive update in 25 years. The new guidelines address crucial legal developments, notably the Bostock v. Clayton County decision, and adapt to the evolving landscape of digital workplaces.

A driving force behind this update stems from the landmark Bostock case, where the U.S. Supreme Court expanded Title VII’s protection against discrimination “because of sex” to include sexual orientation and gender identity.

One notable aspect of the updated guidelines is the inclusion of 77 illustrative scenarios that define behaviors that constitute “protected class” workplace harassment.

Some of the Most Significant New EEOC Guidelines Include:   

• Harassment due to lactation, use or non-use of contraception, or the decision to have or not have an abortion is covered by Title VII if the harassment “is linked to a targeted individual’s sex.”
• “[T]he denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity” may constitute harassing conduct based on an individual’s sexual orientation or gender identity.
• Color-based harassment due to an individual’s skin shade or complexion is independently covered by Title VII.
• Religious harassment in the workplace includes “explicitly or implicitly coercing employees to engage in religious practices at work.”
• Disability-based harassment includes “harassment based on the disability of an individual with whom they are associated.”
• Repeated intentional misgendering or “outing” an employee (disclosing an individual’s sexual orientation or gender identity without permission) is sex-based harassment under Title VII.
• Retaliatory harassing conduct – retaliation against employees who oppose unlawful discrimination in the workplace under an EEO statute – may be challenged under Title VII “even if it is not sufficiently severe or pervasive to alter the terms and conditions of employment by creating a hostile work environment.”

Hostile Work Environment

The EEOC also provides a non-exhaustive list of single-incident occurrences of harassment that constitute a hostile work environment, including:

• Sexual assault,
• Sexual touching of an intimate body part,
• Physical violence or the threat of physical violence,
• The display of symbols of violence or hatred, such as a swastika, an image of a Klansman’s hood, or a noose,
• The use of denigrating animal imagery, such as comparing the employee to a monkey, ape, or other animal,
• A threat to deny job benefits for rejecting sexual advances, and
• The use of the “n-word” by a supervisor in the presence of a Black subordinate.

Social Media and Free Speech

The EEOC guidelines warn that employers may be liable for employees’ conduct outside of the workplace, including digital communications and social media posts, if the conduct contributes to a hostile work environment. The guidance also states that “postings on a social media account generally will not, standing alone, contribute to a hostile work environment if they do not target the employer or its employees.”

Addressing concerns about free speech protections, the new guidelines also clarify that not every workplace conversation of religious perspectives on issues such as abortion and gender identity constitutes unlawful harassment.

The new EEOC guidelines are expected to be challenged in future litigation. Nonetheless, all new guidelines are effective immediately. Businesses should review and update their policies and handbooks accordingly.

Looking for legal advice on compliance with these new rules? We offer employment law and policy training, as well as employment handbook reviews.