The Equal Employment Opportunity Commission (EEOC) recently issued its first workplace harassment guidance since 1999. Enforcement Guidance on Harassment in the Workplace supersedes several dated guidance documents that were adopted as early as 1987 and reflects changes in the modern workplace.

Guidance documents aren’t law, but constitute significant resources the EEOC uses in making enforcement decisions and courts reference in case decisions involving harassment. Guidance documents provide helpful examples and advice drawn from EEOC interpretation of legal decisions.

This column will discuss some of the significant takeaways for employers.

Consistent with the 2020 U.S. Supreme Court ruling in Bostock v. Clayton County, the new guidance states that harassment because of sex includes harassment because of sexual orientation or gender identity, including how an employee expresses that identity.

This type of harassment includes epithets regarding sexual orientation or gender identity; physical assault due to sexual orientation or gender identity; “outing” another employee — that is, disclosing an individual’s sexual orientation or gender identity without the individual’s permission; harassing conduct because an individual doesn’t present in a manner stereotypically associated with that person’s gender; repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity; or denying an employee access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.

However, federal courts in both Texas and Tennessee recently blocked EEOC guidance permitting exceptions for LGBTQ+ employees from workplace policies on bathrooms, dress codes and locker rooms. And 20 state attorneys general sent the EEOC a letter in 2023 when the EEOC proposed the new guidance stating they would take legal action against the new guidance if it was adopted because the guidance exceeds EEOC authority by interpreting Bostock’s protections for gender identity more broadly than Title VII of the Civil Rights Act requires.

Sex-based harassment also includes harassing conduct based on pregnancy, childbirth or related medical conditions. This new guidance advises that sex-based harassment includes harassment because of lactation or on an individual’s reproductive decisions such as choices on whether to use contraception or have an abortion.

The new guidance clarifies that harassing conduct that occurs in a work-related context outside the regular workplace could create a hostile work environment. The EEOC cited as examples harassment during off-site employer-hosted parties and harassment during non-work hours at employer-provided housing. Conduct is within the work environment if it’s conveyed using work-related communications systems, devices or platforms, including virtual platforms and videoconferencing.

Employers are responsible for activities an employee conducts outside the work context that affect the workplace. The new guidance clarifies that social media postings will not, standing alone, contribute to a hostile work environment if they don’t target the employer or its employees. An employee who posts controversial topics on social media but does not connect their posts to their employer or impose these views on coworkers in the workplace doesn’t create a hostile work environment. But social media posts that single out a coworker could create a hostile work environment when the targeted employee becomes the topic of discussion at work, other employees are tagged in the post or the post is combined with harassing activities in the workplace.

Non-consensual distribution of real or computer-generated intimate images through social media, messaging applications or other electronic means can contribute to a hostile work environment if it affects the workplace. The new guidance provided as an example an employee sharing sexually explicit images of a coworker that created humiliation of the coworker in the workplace.

Employers must ensure their handbooks and policies comply with modern standards, train managers and supervisors and update training materials to reflect changing laws and guidance and then take prompt, appropriate action to counter workplace harassment.

The Employers Council provides employee handbook reviews to consulting and enterprise members as part of membership. All Employers Council members may access extensive handbook and policy resources and templates on the Employers Council member website. Consulting and enterprise members may discuss how the new guidance affects their workplaces with Council human resource professionals and employment law attorneys.