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  • Jessica James

ICYMI - EEOC Releases Updated Guidance On Workplace Harassment After 25 Years.

Seasoned California employers are likely familiar with the state’s long-standing requirement for sexual harassment prevention training and robust requirements for related policies.  If not—California has several statutory requirements for non-harassment policies and requires employers with five or more employees to provide one hour of training to nonsupervisory employees and two hours of training to supervisors every other year or within six months of hire.


What you may have missed is the federal Equal Employment Opportunity Commission (EEOC) recently released updated guidance on workplace harassment for the first time in nearly 25 years, offering boarder terminology with over 70 new examples.  See Enforcement Guidance on Harassment in the Workplace, No. 915.064 (Apr. 29, 2024) (the “Guidance").  While the Guidance does not create new law and is not binding on courts, it does provide a timely and important insight into the anticipated future of enforcement actions.


Savvy employers and HR professionals should familiarize themselves with these definitions to identify various forms of harassment, protect their workforce, and mitigate liability.  


Key Takeaways

The EEOC’s Guidance provides long awaited responses to several open questions, including about pronoun usage, abortion, and social media.  Here's a short summary on several main takeaways, with a more comprehensive summary available here.  


  • Pregnancy, Childbirth, & Related Medical Conditions: The definition of sexual harassment is interpreted to include harassment based on pregnancy, childbirth, and related medical conditions. “This can include issues such as lactation; using or not using contraception; or deciding to have, or not to have an abortion.”

  • Virtual Workplace Harassment: The Guidance emphasizes the importance of protecting employees in a remote and virtual workplace, including email/chat related conduct and forwarding AI-generated offensive conduct.  It also provides that targeted communications using social media can contribute to a hostile work environment.

  • Cross-Bases Issues. The Guidance covers perceived and associational harassment, indicating a person can be a victim of unlawful harassment “even if the harasser is wrong about the victim’s protected characteristics[, f]or example, harassment of a Sikh man wearing a turban because the harasser thinks he is Muslim” and “harassment based on a person’s association with somebody who does not share the same protected characteristic as the victim also may violate the law.”

  • Intersectional Harassment: This is harassment based on the intersection of two or more protected characteristics. For example, the EEOC explains, “if a woman who is age forty or older is harassed based on stereotypes about older women, this harassment is covered as both age and sex discrimination.”

  • Intra-class Harassment: Harassment that is based on the complainant’s protected characteristic is covered even if the harasser is a member of the same protected class as the person who is reporting the harassment. This is known as “intraclass” harassment.

  • Intentional Misgendering: Harassing conduct based on sexual orientation or gender identity may include “intentional misgendering,” which occurs when the harasser engages in repeated and deliberate use of a name or pronoun that is inconsistent with the individual’s known gender identity.

  • Systemic Harassment: When harassment is due to a business practice or policy, it is called as “systemic” harassment since it is not limited to a single incident or occurrence, but rather an entire organization. It is also known as institutionalized harassment. “Like other forms of discrimination, harassment can be systemic, subjecting multiple individuals to a similar form of discrimination. If harassment is systemic, then the harassing conduct could subject many, or possibly all, of the employees of a protected group to the same circumstances.”


These terms apply federally across the United States, not solely in California, and will likely become increasingly relevant in workplace policies, complaints, and investigations moving forward.  Are your policies current? Is your team up to date on harassment prevention training? If not, consider reaching out to experienced counsel for assistance.  

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