The U.S. Equal Employment Opportunity Commission (EEOC) recently issued its proposed “Enforcement Guidance on Harassment in the Workplace,” which presents a legal analysis of standards for harassment and employer liability applicable to claims of harassment under the equal employment opportunity (EEO) statutes it enforces.
The guidance also consolidates and supersedes prior EEOC guidance documents, serves as a resource for employers, employees, and practitioners in handling harassment claims, and provides clarity regarding existing law.
Establishing causation for harassment in the workplace
The federal EEO laws prohibit workplace harassment if it is shown to be based on one or more of a complainant’s protected characteristics. Causation is established if the evidence shows the complainant was subjected to harassment because of the complainant’s protected characteristic, whether or not the harasser explicitly refers to that characteristic. The determination is evaluated based on a totality of the circumstances. The following principles generally apply.
Facially discriminatory conduct. Conduct that explicitly insults or threatens an individual based on a protected characteristic—such as racial epithets or graffiti—discriminates on that basis.
Stereotyping. Harassment is based on a protected characteristic if it is based on social or cultural expectations, be they positive, negative or neutral, regarding how persons of a particular protected group usually act or appear. This includes harassment based on sex-based assumptions about family responsibilities.
Context. Conduct must be evaluated within the context in which it arises. In some cases, the discriminatory character of conduct that is not facially discriminatory becomes clear when examined within the specific context in which the conduct takes place or within a larger social context.
Link between harassment that is not explicitly connected to a protected basis and facially discriminatory conduct. Conduct that is neutral on its face may be discriminatory when linked to other conduct that is facially discriminatory.
Timing. If harassment began or escalated shortly after the harasser learned of the complainant’s protected status, the timing may suggest the harassment was discriminatory.
Comparative evidence. Evidence showing qualitative and/or quantitative differences in the conduct directed against individuals in different groups can support an inference that the treatment was based on one’s protected status.
Causation issues related to sex-based harassment. Claims of sex-based harassment may rely on any of the causation theories described in the preceding section as well as the Supreme Court’s three, non-exclusive evidentiary routes for establishing causation in a sexual harassment claim:
- Explicit or implicit proposals of sexual activity;
- General hostility toward members of the complainant’s sex; and
- Comparative evidence showing how the harasser treated persons who shared the complainant’s sex compared to the harasser’s treatment of those who did not.
Harassment resulting in discrimination with respect to a term, condition or privilege of employment
For an employer to be liable for workplace harassment, the harassment must affect a “term, condition, or privilege” of employment. In Meritor Savings Bank, FSB v. Vinson, the Supreme Court provided two examples of such unlawful harassment:
- An explicit change to the terms or conditions of employment that is linked to harassment based on a protected characteristic, e.g., firing an employee because the employee rejected sexual advances, and
- Conduct that constructively changes the terms or conditions of employment through creation of a hostile work environment (HWE).
The first type of sexual harassment claim is known as “quid pro quo” harassment. In Burlington Industries, Inc. v. Ellerth, the Second Circuit explained that a quid pro quo allegation “makes a factual claim about the particular mechanism by which a plaintiff’s sex became the basis for an adverse alteration of the terms or conditions of [the plaintiff’s] employment.”
The underlying issue in a quid pro quo allegation is the same as in any claim of disparate treatment (i.e., intentional discrimination): whether the claimant has satisfied the statutory requirement of establishing “discriminat[ion] . . . because of sex” affecting the “terms [or] conditions of employment.” Even if the threat is never carried out, the threat itself is a particularly severe form of harassment and would constitute unlawful sex discrimination if it establishes a HWE, either alone or in concert with other harassing conduct.
To be actionable absent such an explicit change to the terms or conditions of employment, the harassment must change the terms or conditions of employment by creating a HWE. Such harassment is actionable if, as a whole, the conduct is “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” Absent a material change to one’s employment, harassing conduct is nonetheless actionable when it is sufficiently severe or pervasive to create an objectively and subjectively HWE.
Whether conduct creates a HWE depends on the totality of the circumstances, and no single factor is determinative. Factors include: the frequency/severity of the conduct; whether the conduct was physically threatening or humiliating; and, whether the conduct interfered with an employee’s work performance; whether it caused psychological harm.
Impact of digital technology and online content
Employers should note the portions of the proposed guidance on digital technology and social media postings. For example, a HWE claim may include conduct that occurs within the work environment if it is conveyed using work-related communications systems, such as an employer’s email system, instant message system, videoconferencing technology, intranet, public website or social media accounts. As with conduct within a physical work environment, virtual conduct can contribute to a HWE, too. This could include, for instance, racist imagery visible in an employee’s background while on a videoconference.
Generally speaking, employers are not liable for employees’ conduct outside of work, but they may be liable when the conduct reaches the workplace and contributes to a HWE. For example, if an Arab American employee is the subject of ethnic epithets that a coworker posts on a personal social media page, and either the employee learns about the post directly or other coworkers see the comment and discuss it at work, then the social media posting can contribute to a racially HWE.
Given the proliferation of digital technology, it is increasingly likely that the non-consensual distribution of real or computer-generated intimate images using social media can contribute to a HWE, if it impacts the workplace.
The proposed guidance explains the legal standards and employer liability applicable to harassment claims under the federal employment discrimination laws enforced by the EEOC. The proposed guidance provides numerous updated examples to reflect a wide range of scenarios, incorporates updates throughout on 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 HWE. We recommend employers review the proposed guidance, and other EEOC resources, to better handle allegations of workplace discrimination and and/or harassment in the workplace.