On Monday, April 29, 2024, the Equal Employment Opportunity Commission issued the final version of Enforcement Guidance on Harassment in the Workplace. While this guidance does not have the effect of law, it is intended to provide clarity on how the EEOC interprets legal issues regarding workplace harassment and will be utilized by the EEOC when it investigates and makes determinations regarding complaints by employees who allege they are a victim of workplace harassment.

Some notable guidance includes:

• Workplace harassment does not just include harassment by owners, supervisors, or managers. Harassment of an employee by any person, including coworkers, customers, or clients can violate federal law.
• Employers are responsible for preventing workplace harassment and quickly ending harassing behavior once they learn about it even if the harassment is not severe enough to create a hostile work environment.
• Employers are strongly encouraged to have a clear anti-harassment policy with a safe and effective procedure that employees can use to report harassment including more than one option for reporting. Recurring training should be provided to all employees, including managers and supervisors, about the anti-harassment policy and reporting procedures.
• Harassment can take many forms including: saying or writing a slur, forwarding an offensive “joke” email, displaying offensive material, sharing pornography, mimicking a disability, mocking an accent, asking intrusive questions about sexual orientation or gender identity, groping or touching, making sexualized gestures and comments even if the behavior is not motivated by a desire to have sex with the victim, or threatening someone’s job or offering preferential treatment in exchange for sexual favors.
• Harassment may be based on more than one protected characteristic and may also overlap with other characteristics based on an actual or perceived connection between the two characteristics.
• Harassment based on the perception that an individual belongs to a protected class is still harassment even if the perception is incorrect.
• Sex-based harassment can include issues such as lactation, use of contraception, and the decision to have an abortion.
• Sex discrimination can be based on gender identity and it can be considered harassment to misgender someone or deny access to a bathroom consistent with the individual’s gender identity.
• Harassment can occur in remote work settings via electronic communications using private phones, computers, or social media accounts if it impacts the workplace. However, postings on social media generally will not, standing alone, contribute to a hostile work environment if they do not target the employer or its employees.

If you have any questions regarding the final guidance and how it may impact your business or organization, please contact Susanna Fultz or any member of the Barley Snyder Employment Practice Group.