What’s Covered? – Everything on Harassment in All its Forms.
On April 29, 2024, the EEOC issued “Enforcement Guidance on Harassment in the Workplace.” In this publication, the EEOC makes clear that actionable workplace harassment may arise from any protected characteristic: race, color, religion, sex (including gender identity), national origin, age, disability, or genetic information. While the guidance sparked litigation concerning the EEOC’s position regarding treatment of transgender workers, it still affords employers a valuable resource for determining how the agency evaluates many forms of workplace harassment.
Major topics addressed include: Covered Bases and Causation; Harassment Resulting in Discrimination with Respect to a Term, Condition, or Privilege of Employment; Liability; and Systemic Harassment. Within these topics, the EEOC provides a detailed analysis of workplace harassment along with a significant number of examples; many of which are based upon reported cases. The examples include situations where the EEOC concludes that actionable harassment did not occur, as well as situations where the EEOC determines it did.
How the EEOC Defines Harassment – Both in the Physical and Virtual World.
In the guidance, the EEOC explains that harassment must be “based on a protected characteristic” and “affect a term, condition, or privilege of employment.” Mere “juvenile,” “boorish,” or “annoying” behavior does not constitute actionable harassment. The EEOC distinguishes what is commonly referred to as “quid pro quo” harassment – or this-for that harassment, and harassment derived from a “hostile work environment.” Quid pro quo harassment involves an “explicit change to the terms and conditions of employment” such as denying a promotion when an employee refuses to acquiesce to a supervisor’s romantic overtures.
Hostile work environment harassment involves conduct that is both subjectively and objectively so hostile that it alters the terms and conditions of employment. This can be established through a demonstration of either the severity of the conduct or the pervasiveness of it. Moreover, the EEOC explains that a complainant need not show that an objectively hostile work environment harmed the complainant’s work performance. The employer’s response or anticipated response to the harassment also contributes to the analysis of severity. If the complainant has reason to believe that the harasser “is insulated from corrective action” because the harasser is a “highly valued employee,” the severity intensifies.
Actionable harassment may occur outside of the employer’s office, but in a work context. The EEOC offers an example of a drunk co-worker attempting to kiss and grope a colleague at a holiday party in a private restaurant. The EEOC notes that when a supervisor engages in this type of harassment is it more likely to contribute to a hostile work environment.
Harassment may also occur in virtual worlds through “work-related communication systems, accounts, devices, or platforms.” The EEOC articulates that “postings on a social media account generally will not, standing alone, contribute to a hostile work environment if they do not target the employer or its employees.” In this context, the EEOC offers an example of a social media post that targeted a specific employee that gave rise to a claim for harassment. However, in another example, a male employee’s social media rants criticizing women’s behavior in general did not give rise to a claim for sexual harassment.
The EEOC also provides the following examples of single incidents that give rise to actionable harassment:
Sexual assault,
Sexual touching of an intimate body part,
Physical violence or the threat of physical violence,
The display of symbols of violence or hatred, such as a swastika, an image of a Klansman’s hood, or a noose,
The use of denigrating animal imagery, such as comparing the employee to a monkey, ape, other animal,
A threat to deny job benefits for rejecting sexual advances, and
The use of the “n-word” by a supervisor in the presence of a Black subordinate.
With each of these specific examples, the EEOC provides footnotes to cases upon which these examples are based.
Additional important topics covered in the guidance include a detailed analysis of harassment that is based upon more than one protected characteristic. By way of example, the EEOC describes a situation in which a 51-year-old female sales associate is subjected to actionable harassment based upon her sex and age when an assistant manager makes offensive comments relating to menopause, hot-flashes, and the employee’s alleged declining attractiveness and mental capacity.
The EEOC concludes that actionable harassment may occur even when a claimant cannot demonstrate harassment based upon one protected characteristic. If the conduct is “sufficiently related to be considered part of the same hostile work environment, then all the acts should be considered together in determining whether the conduct created a hostile work environment.”
In describing Systemic Harassment, the EEOC discusses: Harassment Affecting Multiple Complainants and Pattern or Practice of Harassment. In either scenario, the EEOC emphasizes the importance of the employer’s obligation to not only address isolated incidents of harassment, but also to investigate a potential root cause of the harassment that routinely impacts multiple employees. Employers are encouraged to examine repeated complaints of harassment within an organization to evaluate whether certain policies and practices created an environment of systemic harassment.
What Standards the EEOC Applies in Evaluating an Employer’s Liability.
The EEOC describes four standards of liability analysis:
1. Harassment by a Proxy or Alter Ego of the Employer. The employer is automatically liable for the “hostile work environment created by the harasser’s conduct” when the harasser is a “proxy or alter ego of the employer.” The EEOC concludes that there is no defense. Generally, the EEOC describes individuals who constitute proxies or alter egos as those whose rank or authority dictates that their actions “speak for the company.” This includes owners, partners, officers, and high-level managers.
2. Harassment by a Supervisor that Includes a Tangible Employment Action. When the harasser is a supervisor “and the hostile work environment includes a tangible employment action against the victim, the employer is vicariously liable” even if the supervisor is not a proxy or alter ego for the employer. The EEOC concludes that, in that circumstance as well, the employer has no defense. Tangible employment actions include “hiring and firing, failure to promote, demotion, reassignment with significantly different responsibilities, a compensation decision, and a decision causing a significant change in benefits.” Demotions or reductions in job responsibilities that do not result in pay reductions may still constitute tangible employment actions. Tangible employment actions also include “fulfilling a promise to provide a benefit” when the employee submits to sexual demands.”
Even if the person does not make the ultimate decision as to the tangible employment action, if he or she can “recommend or otherwise substantially influence” tangible employment actions, then the individual constitutes as a supervisor. Employers should also note that even if the harasser did not possess “actual authority to take a tangible employment action” the individual may still be considered a supervisor through “apparent authority” if the victim “reasonably believes” that the harasser possessed such power.
3. Harassment by a Supervisor that Does Not Include a Tangible Job Action. The employer may have a defense when the harasser is a supervisor, but has no standing as a proxy or alter ego, and no tangible employment action has occurred. In this situation, the employer may rely upon the defenses frequently referred to as Faragher-Ellerth defenses in reference to the 1998 U.S. Supreme Court case. In those circumstances, the employer may defeat the claim of harassment by demonstrating:
a. the employer took reasonable action to both “prevent and promptly correct the harassment;” and
b. the complainant “unreasonably failed” to utilize the employer’s established complaint procedure or “take other steps to avoid or minimize harm from the harassment.”
If the employer cannot establish both elements, it does not have the benefit of the defense.
4. Harassment by Co-Workers or Parties Outside the Employer’s Organization.When the harasser is someone other than a proxy, alter ego, or supervisor, the employer may succeed in defending against a hostile work environment claim by demonstrating that it acted to reasonably prevent the harassment, including corrective action when the employer “was aware, or should have been aware of it.” This analysis applies to conduct that includes not only coworkers but non-employee third parties as well.
Employer Next Steps in Response to the Guidance.
Employers will want to consider the guidance to evaluate their current policies and protocols for preventing and addressing harassment. However, the EEOC points out that merely establishing anti-harassment policies and implementing anti-harassment training will not provide a barrier to liability for a harassment claim. In multiple scenarios, the EEOC explains that the employer’s preventive measures are insufficient when a supervisor observes but fails to report harassment. In the EEOC’s view, even if the harasser’s employment is ultimately terminated, there may still be liability on part of the employer if a supervisor observed the misconduct but failed to report the harassment. Similarly, the employer’s response to a complaint of harassment must be prompt and thorough. An employer’s delay in investigating harassment can increase the potential liability. Likewise, the employer should utilize a non-biased investigator trained in EEO matters. When the investigator is a subordinate who answers to the accused harasser or is untrained in this area, the employer’s actions may be viewed as insufficient to promptly address and correct the misconduct.
