On April 29, 2024 the U.S. Equal Employment Opportunity Commission (“EEOC”) published its final guidance on harassment in the workplace.

As Proskauer previously covered, this final guidance follows proposed guidance, which the EEOC published on October 2, 2023. According to a press release issued by the EEOC, the final guidance “updates, consolidates, and replaces the agency’s [previous] documents issued between 1987 and 1999, and serves as a single, unified agency resource on EEOC-enforced workplace harassment law.”

Some key highlights from the final guidance are as follows:

  • The clarification of broad protection for LGBTQ+ workers, based on the Supreme Court’s decision in Bostock v. Clayton County, 590 U.S. 644 (2020). The guidance notes that harassing conduct based on sexual orientation or gender identity includes “outing (disclosure of an individual’s sexual orientation or gender identity without permission); … repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.”
  • The explanation of how conduct within a “virtual” work environment (like sexist comments or racist background imagery in a work video meeting) can contribute to a hostile work environment. However, the final guidance also clarifies that posts on social media generally will not, standing alone, contribute to a hostile work environment if they do not target the employer or its employees.
  • The confirmation that a single incident of harassment can amount to a hostile work environment if sufficiently severe.
  • The emphasis that sex-based harassment under Title VII encompasses harassment based on pregnancy, childbirth, or related medical conditions (including the decision to have, or not have, an abortion).
  • The description of key elements necessary to establish that the employer exercised reasonable care to prevent and correct harassment. These elements are: a broadly disseminated policy against harassment, a process for addressing harassment complaints, training to ensure employees understand their rights and responsibilities, and monitoring of the workplace to ensure adherence to the employer’s policy.
    • The guidance details the components of an effective anti-harassment policy, which, among other items, should cover supervisor reporting responsibilities, “clearly identif[y] accessible points of contact” and include their “contact information.”
    • The guidance also sets forth the features of an effective complaint process, which, among other things, should provide for prompt and effective investigations and corrective action, and adequate confidentiality and anti-retaliation protections.
    • For training to be effective, the guidance instructs that it, among other things, should be provided to all employees on a regular basis. It should also provide supervisors and managers with information about how to prevent, identify, stop, report, and correct harassment.
    • Notably, according to the EEOC, having a comprehensive anti-harassment policy and complaint procedure is not enough to establish reasonable care if the employer fails to properly implement these policies and procedures or to appropriately train employees.

Alongside the final guidance, the EEOC has also issued several educational resources concerning the new guidance, including a “Summary of Key Provisions” document, a document summarizing the final guidance for employees, and a fact sheet for small businesses.

Photo of Evandro Gigante Evandro Gigante

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of…

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of race, gender, national origin, disability and religious discrimination, sexual harassment, wrongful discharge, defamation and breach of contract. Evandro also counsels employers through reductions-in-force and advises clients on restrictive covenant issues, such as confidentiality, non-compete and non-solicit agreements.

With a focus on discrimination and harassment matters, Evandro has extensive experience representing clients before federal and state courts. He has tried cases in court and before arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions.

Photo of Jurate Schwartz Jurate Schwartz

Jurate Schwartz is a senior counsel in the Labor & Employment Law Department. She devotes her practice to counseling clients in employment matters, as well as representing employers in federal and state litigations, arbitrations and administrative proceedings.

Jurate’s practice includes providing advice on…

Jurate Schwartz is a senior counsel in the Labor & Employment Law Department. She devotes her practice to counseling clients in employment matters, as well as representing employers in federal and state litigations, arbitrations and administrative proceedings.

Jurate’s practice includes providing advice on compliance with various laws affecting the workplace, including the FMLA, ADEA, Title VII, ADA, FLSA and similar state and local laws. She counsels clients on developing, implementing and enforcing personnel policies and procedures and reviewing and revising multi-state employee handbooks under federal, state and local laws. Jurate also advises clients on policy and training issues, including discrimination, harassment, retaliation, wage and hour, employee classification, accomodation of religious beliefs, pregnancy and disability, and leaves of absence, including vacation and paid time off policies, multi-state paid sick and safe leave laws and paid family and medical leave laws. Jurate is experienced in conducting wage-and-hour audits under federal and state wage-hour laws and advising clients on classification issues. She also assists clients in drafting employment, independent contractor, consulting and separation agreements as well as various restrictive covenants.

In addition to counseling, Jurate litigates employment disputes of all types, including claims of employment discrimination, harassment, retaliation, whistleblowing, breach of contract, employment-related torts and claims under federal and state wage-and-hour laws. Jurate also assists clients in matters involving trade secrets and non-competes, as well as nonsolicitation, nondisclosure agreements and other restrictive covenants.

Jurate has been ranked by Chambers USA in Florida since 2012. One client comments, “I am a client with extremely high expectations and Proskauer never ceases to exceed them. Jurate has a perfectionist personality and that fits well with how we operate.”

Jurate’s pro bono work includes service on the HR committee of a not-for-profit organization, the YMCA of South Palm Beach County, Florida, and assisting other not-for-profit organizations with employment matters, as well as her successful representation of an unaccompanied immigrant child in an asylum proceeding referred by the National Center for Refugee & Immigrant Children.

Photo of Laura Fant Laura Fant

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns…

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns, with a focus on legal compliance, risk management and mitigation strategies, and workplace culture considerations.

Laura regularly counsels clients across numerous industries on a wide variety of employment matters involving recruitment and hiring, employee leave and reasonable accommodation issues, performance management, and termination of employment . She also advises on preparing, implementing and enforcing employment and separation agreements, employee handbooks and company policies, as well as provides training on topics including discrimination and harassment in the workplace. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog and The Proskauer Brief podcast.

Photo of David Gobel David Gobel

David R Gobel is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

David Gobel earned his J.D at USC Gould School of Law, where he was a Senior Citations Editor of the USC Journal of

David R Gobel is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

David Gobel earned his J.D at USC Gould School of Law, where he was a Senior Citations Editor of the USC Journal of Interdisciplinary Law, and part of the executive committee of USC’s Music Law Society. Prior to law school, David worked as a research executive for a marketing research firm in New York.