The Equal Employment Opportunity Commission (EEOC) has finalized a new anti-harassment resource titled Enforcement Guidance on Harassment in the Workplace. Originally released for comment in 2017 the guidance was finalized November 1, 2023.  

The updated guidance reflects notable changes in the law since 2017 including the U.S. Supreme Court’s decision in Bostock v. Clayton County, the #MeToo Movement and emerging issues such as virtual or online harassment. The guide provides several updated examples reflecting a wide range of scenarios, incorporates updates on current case law and addresses the proliferation of digital technology and how social media postings and other online content can contribute to a hostile work environment.  

Specifically, the new guidelines define sex-based harassment to include the following conduct: 

• insulting remarks regarding sexual orientation or gender identity; 
• physical assault due to sexual orientation or gender identity; 
• forced “outing” of an individual (the disclosure of an individual’s sexual orientation or gender identity without permission); 
• harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex; 
• misgendering (repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity); and 
• denying access to sex-segregated facilities consistent with the individual’s gender identity, such as bathrooms and locker rooms. 

The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against applicants or employees because of a protected classification (e.g., race, color, religion, sex (including pregnancy and related conditions, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.) Most employers with 15 or more employees are covered by EEOC laws (20 employees in age discrimination cases).  

The updated guidance resource should prove to be a useful tool in assisting employers in providing a harassment-free workplace. Employers should review the updated guidance and audit current anti-harassment policies/procedures and training protocols to assure alignment with current practices.