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Proposed EEOC Guidance Would Affect Harassment Protections

Notebook with Workplace Harassment written on first page.

Earlier this month, the Equal Employment Opportunity Commission (EEOC) proposed new guidance that would clarify how the agency enforces laws prohibiting workplace harassment. The new guidance is up for public comment until November 1.

While the proposed guidance is not itself a change to the law, it clarifies how evolving case law (including the Supreme Court's decision in Bostock v. Clayton County) and changing circumstances in the workplace, including the rise of remote and hybrid workplaces, will affect how the agency investigates and addresses harassment claims.

The new guidance comes at a critical time for workers in Ohio and throughout the country. According to the EEOC, there were 24,430 harassment claims filed with the agency last year, which is the highest number since the pandemic radically reshaped workplaces.

What the proposed guidance would clarify

At the federal level, workplace harassment is prohibited by several laws, including Title VII of the Civil Rights Act (which prohibits harassment on the basis of race, sex, religion, and several other protected categories), the Age Discrimination in Employment Act (which prohibits harassment on the basis of age if the victim is over 40), and the Americans with Disabilities Act (which prohibits harassment on the basis of disability).

As the Society for Human Resource Management reported, proposed guidelines will include guidance for employers, employees, and the public on several aspects of harassment claims, including:

  • Updated harassment examples: The agency's new guidelines will include an expanded set of examples that reflect the wide range of scenarios in which unlawful harassment can occur, taking into account the changing workplace of 2023.
  • LGBTQ+ worker protections: The proposed guidance would clarify and protect the rights of LGBTQ+ employees in the workplace with respect to freedom from harassment on the basis of gender identity or sexual orientation.
  • Abortion-related decisions: The new guidance would clarify the EEOC's position that employees' abortion-related decisions are covered by anti-bias laws.
  • Social media and digital harassment: The updated guidelines would address the role of social media and other online content in creating a hostile work environment.

Again, this is not a change to the law, but a clarification of existing law. In particular, the legal definition of workplace harassment would not change with the new guidelines. Illegal harassment is unwelcome conduct, based on race, sex, religion, genetic information, disability, or another protected category, that becomes severe and pervasive enough to create an intimidating, hostile, and abusive work environment. The harasser may be a supervisor, co-worker, or even a non-employee such as a contractor, vendor, or customer; what matters is the employer's responsibility to ensure the work environment is free of unlawful harassment.

What to do if you are being harassed at work

You need to take two immediate steps if you believe you are a victim of illegal workplace harassment. First, document everything. Harassment claims are almost always based on a pattern of behavior rather than a single incident, and you need extensive documentation to show that pattern. Get names and contact information for witnesses. Save copies of any documents or messages in a place your employer doesn't control. Write down contemporaneous accounts of the harassment to later verify your claim.

Second, talk to an experienced employment law attorney about your legal rights and options. Calling an attorney isn't a commitment to file a lawsuit; it's a chance to get answers about your legal situation. If you believe you are being harassed at work in Ohio, give us a call or contact us online for a free case evaluation with Gibson Law, LLC.

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