Proposed Workplace Harassment Guidance from the EEOC
On Monday, October 2, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) published notice of proposed guidance on its enforcement of various laws prohibiting harassment in the workplace. The notice was published in the Federal Register for the purpose of eliciting public comments through November 1, 2023.
This proposed guidance is intended to supersede prior guidance issued between 1987 and 1999, in light of developments like the U.S. Supreme Court decision in Bostock v. Clayton County (holding that Title IX protects transgender persons from discrimination on the basis of sex),1 the #MeToo movement, and changes in the way harassment may occur (e.g., online harassment). The guidance itself recognizes that it “does not have the force and effect of law and [is] not meant to bind the public in any way.” Instead, according to the EEOC, the proposed guidance is intended to “provide clarity to the public regarding existing requirements under the law or Commission policies.”
The proposed guidance is structured to mirror the components of a harassment claim, with content related to: (1) Covered Bases and Causation; (2) Discrimination with Respect to a Term, Condition, or Privilege of Employment; and (3) Liability. Within each section, the EEOC provides example scenarios related to harassment on the basis of race, color, religion, sex, sexual orientation, transgender status, pregnancy, national origin, disability, age, and genetic information.
Although this guidance has not been finalized and does not have the force and effect of law, it may serve several important purposes for your college campus. First, it offers a glimpse into the way the EEOC views the issue of harassment and its role in enforcing various civil rights laws. Second, the public comment period offers employers – including colleges and universities – the ability to provide written feedback on the substance of the guidance before it becomes final. Third, although the guidance is not legally binding in either proposed or final form, it includes extensive citations to relevant federal court decisions interpreting Title VII, the Age Discrimination in Employment Act, the Americans with Disability Act, and the Genetic Information Nondiscrimination Act. Depending on the geographic location of your institution, these cases may represent binding legal authority that applies to your administration and employees.
1 Bostock v. Clayton County, 140 S.Ct. 1731 (2020).