The Good News: EEOC Issues Superb Guidance on Harassment

By Ann Boehm, May 13, 2024

On April 29, the EEOC issued “Enforcement Guidance on Harassment in the Workplace.” Trust me. You want to read this guidance.

I’m always happy to praise Federal agencies when they do something well – something that really helps. This guidance does that.

I could spend time summarizing the guidance, but I do not need to because it is a very usable document. Instead, I’ve decided to highlight my favorite things.

• The guidance is structured based upon how a harassment case is analyzed. How logical!
  • Covered bases and causation – What are the protected statuses and how is the alleged harassment tied to the protected status?
  • How did allegedly harassing conduct impact on a term, condition, or privilege of employment? – What constitutes a hostile work environment?
  • Employer liability – What makes an employer liable for the conduct?

• The guidance has 77 (yes, 77!) examples of what is or is not harassment.
  • By golly, these are really, really helpful.

• The guidance is very readable.
  • I get that I am a lawyer, but I firmly believe any non-lawyer can read and understand this guidance.
• The guidance gets to the point efficiently. For example, regarding what constitutes a “prompt investigation,” the EEOC gives the parameters up front:

“An investigation is prompt if it is conducted reasonably soon after the employee complains, or the employer otherwise has notice of possible harassment. Clearly, an employer that opens an investigation into a complaint one day after it is made has acted promptly. By contrast, an employer that waits two months to open an investigation, absent any mitigating facts, very likely has not acted promptly. In many instances, what is “reasonably soon” is fact-sensitive and depends on such considerations as the nature and severity of the alleged harassment and the reasons for delay. For example, when faced with allegations of physical touching, an employer that, without explanation, does nothing for two weeks likely has not acted promptly.

(You have to admit this is exactly what we need to know about what “prompt” is and what it is not!)

• If you need to skim the guidance, the EEOC has presented key information in highlighted blue boxes.
  • Examples:
    • “Harassment must be based on an employee’s legally protected characteristic.”
    • “These are key questions that typically arise in evaluating a hostile work environment claim and whether it amounts to unlawful harassment . . .”

I hope supervisors, advisors, and employees will read and use this guidance. I especially hope employees will use it. Hostile work environments still exist, and they should not. But a hostile work environment is not just, “my boss does not like me.” Anyone filing or defending against a harassment allegation will benefit from this guidance.

Thank you EEOC for this helpful document. Hey, the government did something good. That is good news! [email protected]

P.S. On a related note, join FELTG on July 11 for the 60-minute training Dealing with “Other” Harassment: It’s Not Always About EEO.