What Constitutes Workplace Harassment in 2024? EEOC Sets Out Its View

May 30, 2024

On April 29, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance on workplace harassment, consolidating its views on the topic from 1987 through 1999 and elaborating on its current interpretation of federal civil rights/EEO laws (Title VII, the ADA and the ADEA, among others). Such laws prohibit work-related harassment based on protected characteristics - such as race, religion, sex, and other similar traits - when that harassment affects a term, condition, or privilege of employment. Highlights of the guidance follow.

Protected Classes

Religious harassment protection extends to employees who are atheist or who lack any religious belief. For example, a religious employee’s repeated statements to a coworker accosting her to participate in religion, despite the coworker’s protests to the conversation, may amount to religious harassment.
Sex harassment is not limited to sexualized conduct, but also includes harassment based on an employee’s sex, sexual orientation, or gender identity. Notably, repeated and intentional misuse of names or pronouns can amount to harassing conduct, though accidental misgendering cannot.
Harassment of an employee for his or her association with a co-worker in a protected class can violate EEO laws, whether that employee is a member of that protected class or not. For example, harassment of a Caucasian employee because his spouse is Black can be considered associational discrimination.
A violation of EEO statutes can exist when harassment is “intraclass,” meaning the harasser is a member of the same protected characteristic class as the victim. For example, intraclass harassment may occur when a fifty-year-old employee makes discouraging comments about a fifty-five-year-old coworker because of his age, even though both are in the protected class of individuals forty and older under the Age Discrimination in Employment Act.
Intersectional harassment based on an employee’s membership in two or more protected classes is covered and actionable by each relevant class. Classes may overlap, for example, if an employee is harassed for being Middle Eastern and Muslim, as the harassment is based on national origin as well as religion.

Hostile Work Environment

Harassment of an employee in a protected class, if ongoing or especially severe, may rise to the level of a prohibited hostile work environment. The EEOC’s updated guidance expands on this by providing examples of what the agency considers illegal off-site harassment.

Harassment occurring off-site but in a work-related context can create a hostile work environment. This involves conduct occurring during work activities away from the office or in a virtual work environment. Examples include unwanted sexual advances at an off-site training or office party, ableist messages conveyed via work-related emails or group chats, sexist comments made during a video meeting, and racist imagery visible in a video meeting.
While, generally, employers are not liable for an employee’s conduct outside of work, a violation of EEO laws may occur if the outside conduct has consequences in the workplace. For example, according to the EEOC guidance, if a Black employee is subjected to racist slurs and physically assaulted by White coworkers who encounter him on a city street, a hostile work environment may result by the presence of those same coworkers in the workplace. Electronic communications on private phones, computers, or social media accounts targeting an employer or its employees, such as an employee’s Facebook post containing ageist remarks about a particular coworker, also could contribute to a hostile work environment, according to the EEOC. Notably, offensive posts addressed generally do not create a hostile work environment absent additional pointed conduct.

Employer Liability

An employer is automatically liable when the person creating a hostile work environment is a proxy or alter ego of the employer – someone of such high rank that he or she speaks for the employer, such as a sole proprietor, owner, corporate officer, or high-level manager.
An employer may be vicariously liable when the harasser creating a hostile work environment is a supervisor who has the authority to take or influence tangible employment actions regarding the victim. A defense may exist, for example, if the company has an established non-harassment policy and the employee unreasonably failed to take advantage of that policy.
If the harassment comes from a low-level supervisor, a co-worker, a customer, or a vendor, the employer is only liable if it was negligent in failing to prevent the harassment or take corrective action once it knew, or should have known, of the harassment.

It is important to keep in mind that EEOC guidance is just that – the EEOC’s interpretation of EEO laws, which can provide insight into how the agency may enforce those laws. As such, it can assist employers dealing with complaints or allegations of harassment, or in developing best practices. Based on this updated guidance, employers should revisit their written non-harassment policies to ensure, for example, that employees understand that off-site harassment can violate company policies.

Nemeth Bonnette Brouwer PC will continue to monitor EEOC enforcement of workplace harassment issues. Feel free to contact any of the attorneys at the firm with your questions.