On September 29, 2023, the US Equal Employment Opportunity Commission issued its long-awaited Guidance on Harassment in the Workplace.  “Preventing and addressing harassment in America’s workplaces has long been a key priority for the EEOC, and this guidance will provide clarity on new developments in the law and build on the Commission’s previous work,” said EEOC Chair Charlotte A. Burrows. “The Commission looks forward to receiving public input on the proposed enforcement guidance.”

The Guidance does not focus solely on sexual harassment, but also covers harassment based on race, color, national origin, religion, sex, age, disability, or genetic information.   It provides numerous updated examples to reflect a wide range of scenarios, incorporates updates throughout relating to current case law on workplace harassment, and addresses the proliferation of digital technology and how social media postings and other online content can contribute to a hostile work environment. 

With respect to sexual harassment, the Guidance incorporates cultural developments like the #METOO movement, and changes in case law, including the US Supreme Court’s decision in Bostock v. Clayton County. 

A few takeaways:

The Guidance expands harassment on the basis of sex to include gender identity and sexual orientation.

The definition was also broadens the definition of sex to include pregnancy, childbirth and “other related medical conditions,”

It reinforced a woman’s rights on reproductive decisions, including protections related to contraception, abortion and lactation, although these issues have been pretty well settled by case law.

 The proposed regulation is posted in the Federal Register for comment for 30 days – until November 1, 2023.