By: Abhishek Ramaswami on behalf of Cadogan Law | September 2024
On April 29, 2024, the Equal Employment Opportunity Commission (“EEOC”) issued its long-awaited update to its enforcement guidance on harassment in the workplace. The update reflects the cultural, social, and workplace changes that the world has seen in recent years, which necessitate an update to keep up with ever-changing societal trends. As such, it is critical that employers have a contemporary understanding of what constitutes ‘harassment’ and adapt accordingly.
Below are some of the notable updates that the EEOC provided that can constitute the basis for harassment and expose employers to liability:
Sex-based harassment: This focuses on pregnancy-related harassment, including lactation, use or non-use of contraception, and the decision whether or not to get an abortion.
LGBTQ-Protections: Harassment of LGBTQ+ employees can be considered a Title VII violation. The EEOC followed the U.S. Supreme Court’s decision in Bostock v. Clayton County, holding that sexual-orientation discrimination and gender identity/transgender discrimination are forms of “sex” discrimination under Title VII. Some examples of discriminatory conduct include repeatedly and intentionally “misgendering” of an individual, discriminating against an employee based on not conforming to a particular gender stereotype (i.e. what they look like or their birth gender), “outing” an employee based on their sexual orientation or identity, or the denial of access to a bathroom consistent with the individual’s gender identity. Employers should also refrain from asking intrusive questions about a person’s sexual orientation, gender identity, gender transition, or intimate body parts.
Race/Color/National Origin: Even though the EEOC explains that color may be linked to harassment based on national origin or race, discrimination can also be based on pigmentation, complexion, or skin tone. For example, a supervisor could be liable for harassment of Indian employees with darker skin tones, but not Indian employees with lighter skin tones, even though both groups are still Indian. This also includes harassment based on traits or characteristics linked to an employee’s race, such as the employee’s name, cultural dress, ancestry, diet, accent or manner of speech, and physical characteristics, including appearance standards (i.e., harassment based on hair textures and hairstyles commonly associated with specific racial groups).
Intraclass or Intersectional Harassment: Intraclass harassment occurs when the harasser is a member of the same protected class as the individual they are harassing. For example, a Hispanic women supervisor could be liable even if she harasses another Hispanic women employee. Intersectional harassment is harassment based on the intersection of two or more protected characteristics, in which multiple discrimination statutes may be implicated. For example, if a supervisor harasses an African American woman with a disability, then both Title VII and the ADA may be implicated if the harassment was based on both protected characteristics of race and disability.
Remote Work: With the shifting landscape to remote/hybrid work arrangements, the EEOC made clear that harassment is not limited to in-person work environments. Harassment can occur in a virtual work environment if conveyed using “work-related communication systems, accounts, devices or platforms,” such as an employer’s email system, electronic bulletin board, instant message system, videoconferencing technology, intranet, public website, official social media accounts, or other technologies. message system, videoconferencing technology, intranet, public website, official social media accounts, or other technologies. Thus, harassment occurs when racist or sexist comments, for example, are typed in a work group chat or made during a Zoom call. It can also occur if one’s background in a virtual work meeting displays hateful imagery.
Conclusion: Employers need to ensure that their handbooks and policies are up to date to reflect the current social environment that exists. The basis of harassment has undergone a significant shift in the last several years and ignorance of updated laws is not a defense to employer liability. There are several nuances to account for, even within protected categories. Employees must also be adequately trained in what constitutes harassment in the workplace today and the type of speech and conduct that is appropriate for the workplace based on this guidance – it should not be assumed that any worker is aware of every possible statement or action that is considered harassment. The onus is on the employer to provide clear guidelines and policies to their employees. As election season rapidly approaches and many charged issues are brought to the forefront of conversation, it is critical that employers are proactive and plan ahead. Employers should have a clear plan of action and outlined policies for reporting of harassment by employees, and quickly and effectively respond to reports of harassment. Without an effective policy or plan of action, employers may be exposed to significant liability for workplace harassment- especially since the scope of harassment has expanded so rapidly in today’s world.
As the political, cultural, and social landscape has rapidly shifted in the last decade, the words and conduct that constitute harassment are constantly evolving. It is critical to ensure that your business remains compliant with state and federal laws and regulations, as well as EEOC guidance, regarding harassment in the workplace. We are happy to assist you if you have any questions about the new EEOC guidance, discrimination and harassment in the workplace, or any other employment law or business matter. Please contact us to schedule a free consultation.
Biography: Abhishek Ramaswami is an Associate Attorney at Cadogan Law, practicing in all aspects of Labor and Employment Law from the agency level through trial, as well as Business Litigation. He is licensed to practice law in Florida, New York, and New Jersey, with pending licensure in Illinois. In his spare time, he enjoys sports, cooking, the outdoors, and traveling with his wife.