EEOC Proposes New Harassment Guidance Addressing Remote Work, Gender Identity and More

Author: Emily Scace, XpertHR Legal Editor

October 2, 2023

The Equal Employment Opportunity Commission (EEOC) has issued proposed enforcement guidance that, if finalized, would represent the first update to the agency's approach to workplace harassment in nearly 25 years.

The guidance responds to significant legal developments - such as the 2020 Supreme Court case Bostock v. Clayton County - and reflects recent issues and emerging trends, such as the growth of remote work. Although it is not legally binding, the guidance offers a window into the EEOC's current perspective and priorities regarding workplace harassment.

Remote and Virtual Harassment

The proposed guidance clarifies that harassment can take place virtually as well as within a physical work environment. For example, the guidance states that conduct that occurs over an employer's communication systems - such as email, instant messaging, videoconferencing and social media - can constitute illegal harassment if it is sufficiently severe or pervasive and based on a protected characteristic such as race, sex, religion, national origin, age or disability.

Even outside-of-work electronic communications can contribute to workplace harassment, the guidance notes. For example, if an employee posts race-based insults and epithets about a coworker on a personal social media account, and the coworker sees or learns about the post, the social media communication could contribute to a hostile work environment.

Applying Bostock

The revised guidance also reflects the agency's interpretation of harassment based on sexual orientation or gender identity. In 2020, the Supreme Court held for the first time in Bostock v. Clayton County that Title VII's prohibition against sex-based discrimination extends to discrimination based on sexual orientation or transgender status. Although the decision did not specifically address harassment, the guidance takes the position that the logic of Bostock applies to workplace harassment as a particular form of discrimination.

Specifically, the guidance states that the following conduct may constitute harassment based on sexual orientation or gender identity:

  • Epithets regarding sexual orientation or gender identity;
  • Physical assault;
  • Harassment because a person does not present in a manner stereotypically associated with their gender;
  • Intentional and repeated use of a name or pronoun inconsistent with the person's gender identity; and
  • Denial of access to a bathroom or other sex-segregated facility consistent with the person's gender identity.

Other Developments

Other significant updates include the following:

  • The position that sex-based harassment includes harassment based on decisions related to contraception, abortion and other reproductive decisions;
  • Guidance on harassment based on genetic information, which is prohibited under the Genetic Information Nondiscrimination Act of 2008 (GINA); and
  • Examples of conduct that could constitute systemic harassment and the steps an employer must take to avoid liability in such cases.

The guidance is open for public comment until November 1.

The EEOC also recently announced its Strategic Enforcement Plan (SEP) for Fiscal Years 2024-2028. Priorities under the SEP include:

  • Targeting discrimination, bias and hate against religious minorities, racial or ethnic groups and LGBTQI+ individuals;
  • Addressing pregnancy discrimination, including under the Pregnant Workers Fairness Act (PFWA);
  • Examining employment discrimination associated with the long-term effects of COVID-19 symptoms;
  • Evaluating employers' increasing use of artificial intelligence and machine learning in recruiting, hiring and other employment decisions; and
  • Preserving workers' access to the legal system by addressing overly broad waivers, releases, nondisclosure agreements and nondisparagement agreements.