EEOC Updates Hostile Work Environment and Harassment Guidelines

The U.S. Equal Employment Opportunity Commission (EEOC) just released its first major update to workplace harassment guidelines in 25 years. These changes significantly impact how employers handle sexual harassment and employment discrimination in traditional and virtual workplaces.

Keeping your organization informed, welcoming, and compliant is the best way to promote a respectful workplace and attract top talent. Since neglecting these requirements can lead to legal risks, employers must update their policies, train their staff, and ensure continued compliance.

In this article, we’ll break down what these updates mean for your business and how Mosey can help you handle corporate compliance with the latest anti-discrimination laws.

How Does the EEOC Define a Hostile Work Environment?

Under EEO laws, a hostile work environment is one in which unwelcome conduct directed toward a protected class creates abusive, intimidating, or hostile working conditions.

The law prohibits harassment based on race, color, religion, sex, sexual orientation, gender identity, national origin, age, disability, genetic information, or related medical conditions.

Additionally, harassing conduct is considered illegal based on two criteria:

Subjective Hostility: How the employee experiences the behavior.
Objective Hostility: Whether a reasonable person would find the behavior hostile.

Based on this definition, harassment might seem easy to identify. However, it can sometimes be difficult for a third party to spot. In fact, even the perpetrator may not fully realize that their actions are creating a hostile environment for others.

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What Are Some Examples of Harassing Behavior?

Here are some examples of harassment to help you identify it for yourself:

Verbal harassment, including the use of epithets, slurs, and derogatory comments that target a protected group.
Unwelcome sexual advances, physical misconduct, or suggestive remarks that cross professional boundaries.
Visual offenses, like displaying offensive images, symbols, or gestures, including hate symbols and other inappropriate images.
Threatening or intimidating behavior, including aggressive physical actions or threatening language.

The EEOC clearly states that harassment is not limited to physical settings. Harassment from anywhere — including offensive emails, inappropriate video calls, or messages on workplace chat apps — can result in a hostile work environment claim.

What Is the New Guidance From the EEOC?

The new harassment guidelines expand employer liability and the scope of harassment in the workplace. To ensure you comply with federal law, here are the most significant updates that you should know.

How Does Harassment Affect the Terms and Conditions of Employment?

Unlawful harassment can interfere with an employee’s ability to perform their job. It can also change the terms, conditions, or privileges of employment.

There are two things employers should look out for:

Severity: A single severe incident — whether a physical assault or a slur — can create a hostile work environment, even if it does not occur again. As a result, you must handle even one-off instances with promptness and proper measures.
Pervasiveness: Repeated but less severe conduct — such as ongoing offensive jokes or comments — can cumulatively establish a hostile work environment. Managers must identify and intervene early to prevent harmful patterns of behavior.

The EEOC clarifies that employees do not need to prove psychological harm or diminished work performance for the conduct to be unlawful. Severity and pervasiveness alone are enough to establish a case.

Ultimately, your employees should know how to report harassment to your HR team, and your HR team should know what to do to resolve these complaints.

What Is Considered Virtual and Offsite Harassment?

The EEOC’s enforcement guidance on harassment in the workplace now addresses incidents outside a physical office:

Virtual Workspaces: Harassment can include offensive behavior during video calls, in chat groups, or over email. For example, insulting remarks in a team Zoom call could contribute to a hostile work environment.
Offsite Events: The new policies also address harassment at conferences, training sessions, or company-sponsored gatherings. Employers should consider improper behavior at offsite events just as seriously as improper behavior at the office.
Social Media: Harassment also encompasses social media posts targeted at specific employees. Employers must step in when online work-related activities, such as cyberbullying or online harassment, make an employee feel unsafe.

Virtual or offsite harassment definitions are meant to account for the modern workplace, forcing employers to extend their policies and accommodate plaintiffs in hybrid or remote settings.

What Steps Should Employers Take To Handle Third-Party Harassment?

Employers are also liable for third-party harassment by their clients, contractors, and vendors. For instance, if a vendor makes inappropriate or hostile remarks to an employee, the employer should:

Conduct an Investigation Into the Complaint: If reported, detail the incident and ensure proper arbitration.
Corrective Action: Discuss the behavior with the third party and take appropriate measures to prevent future occurrences, such as providing anti-harassment resources or terminating the professional relationship.

Failure to address third-party harassment may open employers to legal claims if employee trust is eroded. The inclusion of these scenarios in anti-harassment policies ensures that no gap exists in employee protections.

Why Does Context Matter in Harassment Claims?

For offensive conduct to count as harassment, it must be unwelcome. Employers should view the behavior in context, including but not limited to:

Whether the employee communicated that the conduct was unwelcome.
The relationship and power dynamics of those involved.
The overall workplace culture and norms.

Harassment in isolated settings, such as private meetings or one-on-one virtual calls, can be more difficult to investigate. Employers must understand these nuances when processing and resolving claims.

What Is Intersectional Harassment?

The EEOC defines intersectional harassment as a situation in which multiple protected characteristics are attacked, including race, gender, and age.

For example, intersectional discrimination could include both sexist and racist remarks when targeting a woman of color.

This overlap can heighten the negative consequences of harassment. Employers should take an all-encompassing view of these situations, neither treating them as isolated instances nor overlooking them altogether.

Sensitivity training for HR management can enhance the capacity of your team to recognize and effectively handle these complex instances of harassment.

How To Remain Current With EEOC Guidance

To stay in line and avoid risks, here’s what employers should do about the new EEOC guidelines:

Update Anti-Harassment Policies

Update your policies to reflect the new realities of a modern workplace. These include:

Define Harassment: Clearly distinguish different types of harassment, pointing out what employees and managers must do to maintain respect in various settings. Include concrete examples of severe and pervasive conduct, subjective and objective hostility, and various protected classes.
Reporting Procedures: Provide reporting mechanisms that guarantee confidentiality and non-retaliation. Focus on investigating complaints, documenting incidents, and ensuring compliance with new employment laws. Offer multiple reporting options, including anonymous hotlines, online portals, or directly to human resources.

Your procedures should be reviewed annually and communicated to your workforce. Your employee handbook is a great place to do this, and Employee Handbooks from Mosey make it easier than ever to update your policies. Build a user-friendly handbook in minutes that’s compliant in all 50 states.

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Train Managers and Employees

Regular training is required to develop awareness and accountability of EEOC issues.

Employee Training: Teach employees what constitutes harassment, including in virtual and offsite settings. Examples may include an inappropriate Slack message or an unwelcome advance during a work retreat.
Manager Training: Train managers on handling complaints and confidentiality. Work towards a non-discriminatory environment at your workplace.
Role-Specific Training: Training can be provided on a role-by-role basis so that newcomers and senior leaders alike know their responsibilities.

Once again, annual refreshes of training ensure long-term awareness and adherence.

Strengthen Reporting Systems

Improve your reporting mechanisms to enable employees to raise concerns. Resources like the Department of Justice’s EEO policies emphasize the importance of strong reporting practices.

Anonymous Reporting: These options are provided through third-party hotlines or online tools, where employees can safely report incidents without fear of retaliation.
Step-by-Step Complaint Process: Explain how to file a complaint, what happens during the investigation, and estimated resolution timelines.
Assured Confidentiality: Emphasize to employees that any complaints brought forward will be strictly confidential and retaliation will attract severe disciplinary action.

Strong reporting mechanisms will promote trust and openness in your organization.

Monitor Off-Premises and Off-Campus Behavior

Address off-premise harassment by:

Establishing rules and regulations about behavior in video calls, emails, and chat.
Making clear expectations for off-site events such as conferences and retreats.
Monitoring workplace-related social media activity for harmful content while respecting employee privacy.

Policies should indicate that virtual and offsite conduct will be held to the same standard as in-office behavior.

Investigate Promptly and Document Thoroughly

If grievances arise, employers should act quickly and fairly by:

Getting Statements: Get detailed statements from the complainants, witnesses, and alleged offenders.
Document Evidence: All the findings, actions taken, and resolution steps.
Implement Corrective Measures: Take disciplinary action or further training that addresses the problem.

After a resolution, follow through with the complainants to maintain your commitment to an environment free of workplace harassment.

What Are the Benefits of Compliance?

Compliance with the EEOC’s revised guidelines has several advantages for your organization:

Employee Trust: Clear policies and prompt action foster a culture of safety and respect.
Reduced Legal Risks: Compliance reduces the chances of lawsuits, financial penalties, and reputational damage.
Improved Morale: Employees are more engaged and productive when they feel supported and valued.

Ensure a Compliant Workplace With Mosey

You don’t have to be an expert in compliance to stay ahead of EEOC requirements. Mosey’s compliance platform can help you update your policies, streamline responsibilities across teams, and automate compliance tasks. Book a demo with Mosey to build a safer, more compliant workplace for your team.

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