EEOC Issues New Proposed Guidance on Workplace Harassment Laws

Harassment in the workplace violates federal and New Jersey employment laws in certain circumstances. The harassment must be based on a protected category like race, sex, or religion. It must negatively impact someone’s employment, such as when it creates a hostile work environment. The Equal Employment Opportunity Commission (EEOC) investigates alleged harassment that violates federal employment laws like the Americans with Disabilities Act of 1990 and Title VII of the Civil Rights Act of 1964. In October 2023, the agency issued a new proposed guidance document on unlawful workplace harassment and sought comments from the public. Should the EEOC decide to issue a final guidance document, it would be the first significant update to its guidance in over twenty years.

When Is Harassment Unlawful?

Offensive conduct rises to the level of unlawful harassment in several situations. First, the conduct must be motivated by a protected characteristic like race or sex. Second, one of the following must apply:
– A worker must endure offensive, unwelcome conduct to maintain their employment;
– The conduct is so severe or pervasive that a reasonable person would consider the work environment to be hostile; or
– The conduct is intended to retaliate against a worker for legally protected activities like reporting alleged discrimination.

What Kinds of Conduct Can Constitute Harassment?

A wide range of behaviors can constitute harassment, including offensive jokes or comments, offensive images or gestures, ridicule, intimidation, threats, or physical assault. It can come from managers, supervisors, co-workers, and non-employees like contractors or customers.

A worker does not have to be the direct object or recipient of the offensive conduct to have a claim. For example, an individual who routinely overhears offensive jokes or comments in the workplace could have a claim if the employer does not remedy the situation.

When Are Employers Liable for Workplace Harassment?

An employer can automatically be liable for harassment by a manager or supervisor against a subordinate employee if it results in harm to the employee. A common example of sexual harassment involves a supervisor who demands sexual favors in exchange for preferable work assignments or other benefits.

Claims involving a hostile work environment or harassment by someone who does not have managerial or supervisory authority over a claimant require additional evidence. The claimant must show that the employer knew about the offensive conduct and failed to take action.

What Is the EEOC’s Guidance Document?

The proposed guidance document contains the EEOC’s interpretation of federal anti-discrimination law and guidance for how to identify and prevent unlawful conduct. It is not a binding legal document. It covers discrimination based on the following factors:
– Race and color;
– National origin;
– Religion;
– Sex, including pregnancy, sexual orientation, and gender identity;
– Age, provided the claimant is at least 40 years old;
– Disability; and
– Genetic information and family medical history.

The EEOC accepted comments from the public on the proposed guidance until November 1, 2023. If the agency decides to issue a final guidance document, it will replace five guidance documents on harassment issued from 1987 to 1999.

Employers violating federal or state law might owe compensation to employees they have harmed. If you believe an employer has violated your rights, an experienced and knowledgeable employment lawyer can help you understand your options and advocate for you. The Resnick Law Group represents workers in New Jersey and New York in various employment claims. To schedule a confidential consultation to discuss your case, please contact us today at 973-781-1204, 646-867-7997, or online.

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