The Equal Employment Opportunity Commission (EEOC) released its Enforcement Guidance on Harassment in the Workplace on April 29, 2024. The Guidance obtained approval from a majority vote of the EEOC commissioners, who considered 38,000 public comments on the EEOC’s proposed harassment guidance, issued October 2, 2023. The EEOC’s stated aim for the Guidance is to “help people feel safe on the job and assist employers in creating respectful workplaces.”

To reach this aim, the Guidance lists new kinds of discriminatory behavior, such as online harassment in virtual work environments, refusal to use a transgender workers’ preferred pronouns, barring transgender workers from using bathrooms in accordance with their gender identity, and discriminating against an employees because of their choice related to an abortion or contraceptives. For example, the Guidance classifies an employer refusing to allow a transgender person from using a bathroom that matches with their gender identity as workplace harassment.

The Guidance states that whether conduct, an incident, or a series of incidents constitutes hostile-work-environment harassment based on a protected characteristic depends on “the totality of the circumstances,” considering the entire context of situations as viewed through the eyes of a reasonable person. The lack of bright-line rules, though, may make it difficult for employers to know whether their rules comply with the Guidance. And, while the Guidance is not “law,” the Guidance reflects the benchmark against which the EEOC will analyze workplace harassment claims.

Already, eighteen Republican state attorneys general, led by the Tennessee’s Attorney General Jonathan Skrmetti, have jointly sued the EEOC over the Guidance, leaving the Guidance poised for lengthy litigation.

In the meantime, employers are well advised to seek legal counsel concerning compliance with the Guidance and the risks of not doing so.