#MeToo movement induces contemporary revisions to EEOC Harassment Guidance

The “Me Too” movement brought the once-taboo subject of sexual harassment out of the shadows and into the national spotlight. Over the years, the movement only grew, going viral in 2017 when victims of the “casting couch” came forward against disgraced Hollywood producer Harvey Weinstein. The movement spread to the workplace, with employees coming forward against the likes of morning show anchor Matt Lauer and the late Roger Ailes. According to the Equal Employment Opportunity Commission (“the Commission”), harassment of all kinds still “remains a serious workplace problem,” with 35% of all charges filed with the Commission in the past five years alleging harassment.

Thus, it is timely that the Commission has now released, for public comment, its long-awaited “Enforcement Guidance on Harassment in the Workplace” (“Proposed Guidance”). Most fundamentally, the Proposed Guidance is a desk reference for those Commission staff who review and adjudicate claims brought under the federal equal employment opportunity (“EEO”) law that the Commission is tasked with enforcing. The Proposed Guidance expresses official agency policy and explains how those laws and regulations apply to specific workplace situations. If ultimately adopted, the Proposed Guidance will consolidate and supersede the Commission’s dated, decades-old guidance, revising the same to address substantial developments in the body of law and the contemporary issues facing employers in the 21st century.

However, the Proposed Guidance is more than a “staff manual,” and it will have considerable utility beyond mere guidance for Commission employees. To the extent employers ever find themselves defending claims before the Commission, the Proposed Guidance will provide a modicum of predictability as to the sorts of positions the Commission can be expected to take. The Proposed Guidance will also help employers ensure that they understand the law discussed therein, at least through the eyes of the Commission, and assist them in developing and implementing best practices to protect against any unlawful harassment occurring in their workplaces. Moreover, as the laws discussed in the Proposed Guidance are the very same laws invoked by plaintiffs in courts across the country, the Proposed Guidance may also be instructive to “practitioners … and for courts deciding harassment issues.” And with many State and local laws – including those here in California – historically drawing upon and being shaped by those federal laws, the Proposed Guidance may also prove useful in interpreting law at the State and local level.

This is not the first time in recent memory the Commission has attempted to pass such guidance. Six years ago, the Commission released a substantially similar draft. Extensive public input was provided by employees and employers, alike, and by the myriad organizations that advocate for and represent them. However, the guidelines never made it beyond the drafting stage, reportedly stalled by the prior administration and its conservative and pro-business leanings. Six years later, however, the country and its leadership are – for better or for worse – in a very different place, and conditions are now more conducive to the changes sought by the Commission. Thus, upon closure of the period for public comment on Nov. 1, adoption of the Proposed Guidance is all but certain.

In the weeks ahead, the Commission should expect more of the same praise and concern it received in 2017. Employee advocates, on the other hand, tended to argue that the Proposed Guidance did not go far enough, particularly with respect to important protections for women, oft-marginalized cultural groups and the LGBTQIA+ community. There was near universal praise that these classes – some of whom were entirely absent from prior guidance – were now receiving the recognition and respect they so deserve. The Commission clearly took at least some of those suggestions to heart, with the new Proposed Guidelines containing more prominent mention of reproductive rights, misgendering and identity-based restroom usage, particularly in the wake of the Supreme Court’s 2020 decision in Bostock v. Clayton County, which held that Title VII protects gay and transgender workers from workplace discrimination. The new Proposed Guidance also addresses other emerging issues such as virtual and online harassment through social media.

Employer advocates, on the other hand, are likely to renew their concerns about the Commission impermissibly expanding the law, in some instances, and ignoring and selectively citing it, in others. For example, as to “race-linked traits” (e.g., hair) and “origin-linked traits” (e.g., diet or attire), the U.S. Chamber of Commerce expressed concern that the Commission “may be using its function of issuing sub-regulatory guidance, which should state the law in a manner understandable to the stakeholders, as a means of restating and expanding the law beyond which statute and decided case law permits.” Indeed, while neither hair-based nor caste-based discrimination are even now – six years later – expressly prohibited under federal law, they nevertheless appear in the Proposed Guidance. Similarly, employer advocates found instances of the Commission citing only to its own prior decisions, to the exclusion of “court decisions in the private sector that support or are contrary to the Guidance’s position.” Thus, even though the Commission promotes the guidance as an objective resource, it should be read – particularly by employers and their counsel, as well as any courts referencing it – with the utmost caution.

The Proposed Guidance illustrates the Commission’s increasing focus on harassment in the workplace. As does the Commission’s 2024-2028 Strategic Enforcement Plan, which places special emphasis on harassment of “particularly vulnerable workers and persons in underserved communities,” including immigrants, disabled persons, felons, and LGBTQIA+ individuals, among others. With the Biden administration proposing a 2024 budget of $481.07 million for the Commission – a more than $26 million increase over the enacted budget in 2023 – employers should expect even more aggressive enforcement and scrutiny in the year ahead, and consult with experienced employment counsel to ensure they are prepared for it.