Enforcement Guidance on Harassment in the Workplace U S. Equal Employment Opportunity Commission
Table Of Content
Corrective action in response to a harassment complaint must be taken without regard to the complainant’s protected characteristics. Thus, employers should follow consistent processes to investigate harassment claims, and to determine what corrective action, if any, is appropriate. For example, it would violate Title VII if an employer assumed that a male employee accused of sexual harassment by a female coworker had engaged in the alleged conduct based on stereotypes about the “propensity of men to harass sexually their female colleagues”367 and therefore fired him. 4 42 U.S.C. § 2000e-5 (Title VII); 29 U.S.C. § 626 (Age Discrimination in Employment Act (ADEA)); 42 U.S.C. § 12117(a) (Americans with Disabilities Act (ADA)); 42 U.S.C. § 2000ff-6(a) (Genetic Information Nondiscrimination Act (GINA)).
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341 See Hathaway v. Runyon, 132 F.3d 1214, 1224 (8th Cir. 1997) (“It is not a remedy for the employer to do nothing simply because the coworker denies that the harassment occurred, and an employer may take remedial action even where a complaint is uncorroborated.” (citations omitted)). 332 See, e.g., id.; Sandoval v. Am. Indus., Inc., 578 F.3d 787, 802 (8th Cir. 2009) (quoting Watson v. Blue Circle, Inc., 324 F.3d 1252, 1259 (11th Cir. 2003)); Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 105 n.4 (3d Cir. 2009) (quoting Kunin v. Sears Roebuck & Co., 175 F.3d 289, 294 (3d Cir. 1999)); see also Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 334 (4th Cir. 2003) (stating that the employer cannot adopt a “see no evil, hear no evil” strategy and that notice of harassment is imputed to the employer if a “‘reasonable [person], intent on complying with Title VII,’ would have known about the harassment” (quoting Spicer v. Va. Dep’t of Corr., 66 F.3d 705, 710 (4th Cir. 1995))).
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While the plaintiff in that case did not plead a cause of action under Title VII, if a charge is filed with the EEOC raising similar issues, the EEOC will give the decision appropriate consideration. The Commission carefully considers the facts presented in EEOC charges alleging a failure to provide a reasonable accommodation for a religious belief, practice, or observance, and takes into consideration the employer, employment context, and other relevant facts. The proposed guidance did not attempt to—nor does the final guidance attempt to—impose new legal obligations on employers with respect to any aspect of workplace harassment law, including gender identity discrimination. Nor does the guidance exceed the scope of the Supreme Court’s decision in Bostock. Under these facts, the employer cannot establish the affirmative defense.
A. Harassment Affecting Multiple Complainants
100 See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d Cir. 1996) (describing insults directed at Black employees based on negative stereotyping such as “don’t touch anything” and “don’t steal” as “inherently racist”). 99 See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1117 (9th Cir. 2004) (referring to a Black employee as a “drug dealer” “might certainly be deemed to be a [racial] code word or phrase” (citing Daniels v. Essex Grp., Inc., 937 F.2d 1264, 1273 (7th Cir. 1991))). 98 See, e.g., Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (observing that a person is considered transgender “precisely because of the perception that his or her behavior transgresses gender stereotypes” (citing Price Waterhouse, 490 U.S. at 251)); Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004) (stating that “discrimination against a plaintiff who is trans[gender]—and therefore fails to act and/or identify with his or her gender—is no different from the discrimination directed against Ann Hopkins in Price Waterhouse who, in sex-stereotypical terms, did not act like a woman”); see also supra note 78. 82 Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d Cir. 1996) (describing insults directed at Black employees based on negative stereotyping such as “don’t touch anything” and “don’t steal” as “inherently racist”). 76 See, e.g., Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038, 1048 (10th Cir. 2020) (recognizing Title VII claim alleging discrimination against older women).
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292 The employee is not required to have chosen “the course that events later show to have been the best.” Restatement (Second) of Torts § 918, comment c (1979); see also Kramer v. Wasatch Cnty. Sheriff’s Off., 743 F.3d 726, 754 (10th Cir. 2014) (noting that the employee’s response to harassment was not necessarily unreasonable even if “20/20 hindsight” suggests that she “could have avoided” some of the harm). 288 See Faragher, 524 U.S. at 807 (“If the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and if damages could reasonably have been mitigated no award against a liable employer should reward a plaintiff for what her own efforts could have avoided.”).
231 Sharp v. City of Hous., 164 F.3d 923, 929 (5th Cir. 1999) (“The concept of negligence thus imposes a minimum standard for employer liability—direct liability—under title VII, a standard that is supplemented by the agency-based standards for vicarious liability as articulated in Faragher and [Ellerth].” (internal quotation marks and citation omitted)); Wilson v. Tulsa Junior Coll., 164 F.3d 534, 540 n.4 (10th Cir. 1998) (“The Supreme Court recognized in [Ellerth] and Faragher the continuing validity of negligence as a separate basis for employer liability.”). 220 See Lapka v. Chertoff, 517 F.3d 974, 979, 983 (7th Cir. 2008) (concluding that Title VII covered sexual harassment that occurred while attending employer-mandated training at an out-of-state training center). 203 See, e.g., Christian v. Umpqua Bank, 984 F.3d 801, , 811 (9th Cir. 2020) (concluding that the evidence created a triable issue as to whether a customer’s harassment of the complainant was sufficiently severe or pervasive where the customer persisted in asking the complainant on dates, sending her notes and letters, and repeatedly “pester[ing] her” for months after the complainant asked him to stop). Hosp. of Racine, Inc., 666 F.3d 422, 429, 433 (7th Cir. 2012) (stating that the ten-year age disparity between the teenage complainant and the older harasser, coupled with his authority over her, could have led a rational jury to conclude that the harassment resulted in a hostile work environment).
352 See Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 342 (6th Cir. 2008) (concluding that, although separating the harasser and complainant may be adequate in some cases, it was not sufficient in this case where the wrongdoer was a serial harasser and management repeatedly transferred the harasser’s victims instead of taking other corrective action aimed at stopping the harasser’s misconduct, such as training, warning, or monitoring the harasser). 335 Waldo v. Consumers Energy Co., 726 F.3d 802, 814 (6th Cir. 2013) (stating that a base level of reasonable corrective action may include, among other things, prompt initiation of an investigation); Dawson v. Entek Int’l, 630 F.3d 928, 940 (9th Cir. 2011) (stating that an adequate remedy requires the employer to intervene promptly). 320 See, e.g., Nischan v. Stratosphere Quality, LLC, 865 F.3d 922, 931 (7th Cir. 2017) (holding that the employer could be liable if it knew or should have known of the non-supervisor’s harassing conduct yet failed to act). 251 An employer’s duty to take reasonable corrective action to prevent harassment from continuing is discussed supra at section IV.C.3.b. Co., 12 F.3d 668, 674 (7th Cir. 1993) (“Within the totality of circumstances, there is neither a threshold ‘magic number’ of harassing incidents that gives rise, without more, to liability as a matter of law nor a number of incidents below which a plaintiff fails as a matter of law to state a claim.”); see also Harris, 510 U.S. at 22 (explaining that the determination of whether harassment creates a hostile work environment “is not, and by its very nature cannot be, a mathematically precise test”). 138 See, e.g., Blomker v. Jewell, 831 F.3d 1051, 1056 (8th Cir. 2016) (stating that unwelcomeness is one of the requirements in establishing a hostile work environment based on sex); Smith v. Rock-Tenn Servs., Inc., 813 F.3d 298, 307 (6th Cir. 2016) (same); Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc) (stating that unwelcomeness is one of the requirements in establishing a hostile work environment based on race); Adams v. Austal, U.S.A., LLC, 754 F.3d 1240, 1248 (11th Cir. 2014) (same).
B. Liability Standard for a Hostile Work Environment Depends on the Role of the Harasser
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An employer is vicariously liable for a hostile work environment created by a supervisor.253 Under this standard, liability for the supervisor’s harassment is attributed to the employer. As discussed below, unlike situations where the harasser is an alter ego or proxy of the employer, an employer may have an affirmative defense, known as the Faragher-Ellerth defense, when the harasser is a supervisor. The availability of the Faragher-Ellerth defense is dependent on whether the supervisor took a tangible employment action against the complainant as part of the hostile work environment. If the Faragher-Ellerth defense is available, the employer bears the burden of proof with respect to the elements of that defense.
59 Genetic information is defined to include an “individual’s genetic test,” “genetic tests of family members,” and “the manifestation of a disease or disorder in family members.” 42 U.S.C. § 2000ff(4)(A). The definition of genetic information also includes “any request for, or receipt of, genetic services, or participation in clinical research which includes genetic services, by [an] individual or any family member of such individual.” 42 U.S.C. § 2000ff(4)(B). Genetic information is further defined to include, “with respect to [] an individual or family member of an individual who is a pregnant woman, [the] genetic information of any fetus carried by such pregnant woman,” and “with respect to an individual or family member utilizing an assisted reproductive technology, [the] genetic information of any embryo legally held by the individual or family member.” 42 U.S.C. § 2000ff-8(b).
102 See, e.g., Tomassi v. Insignia Fin. Servs., Inc., 557 U.S. 167 (2009). 97 See King v. Aramark Servs., Inc., 96 F.4th 546, 564 (2d Cir. 2024) (“[A] reasonable jury could conclude that Thomas’s singling out of King for weight-related remarks and conduct—remarks and conduct that he did not direct toward her male peers—reflected not only a bias against individuals with certain body types, but also a gender-based bias.”). Similarly, the Commission fully recognizes the importance of the constitutional right to free speech, which was analyzed by the court in Meriwether v. Hartop, supra, a case cited by many commenters.
For a discussion of when vicarious liability applies, refer to section IV.B.2, supra. Hosp. of Racine, Inc., 666 F.3d 422, 436 (7th Cir. 2012) (stating that a two-month delay in initiating an investigation was not the type of response “reasonably likely to prevent the harassment from recurring” (quoting Cerros v. Steel Techs., Inc., 398 F.3d 944, 954 (7th Cir. 2005))). 296 See id. (referencing a proven, effective complaint process that was available “without undue risk or expense”).
Sophie and Eitan both file EEOC charges. Eitan’s allegation is that he faced a hostile work environment based on national origin and religion; Sophie’s allegation is that Eitan faced a hostile work environment based on his national origin and religion and she was forced to participate in it. Based on evidence that the harassment occurred on a regular basis and included serious and offensive conduct, including harassment designed to interfere with Eitan’s work performance and ostracize him, the investigator concludes that Eitan was subjected to a hostile work environment based on his race and religion. Harassment based on the perception that an individual has a particular protected characteristic—for example, the belief that a person has a particular national origin, religion, or sexual orientation—is covered by federal EEO law even if the perception is incorrect.[66] Thus, harassment of a Hispanic person because the harasser believes the individual is Pakistani is national origin-based harassment, and harassment of a Sikh man wearing a turban because the harasser thinks he is Muslim is religious harassment, even if the perception in both instances is incorrect. 272 EEOC v. Spud Seller, Inc., 899 F.
2d 1212, 1217 (D. Or. 2002) (denying summary judgment to the employer where the alleged harassment included “questions such as, ‘Do you wear the dick in the relationship?’ and, ‘Are you the man?’”). Lim Am., Inc., 296 F.3d 810, 817 (9th Cir. 2002) (concluding that the plaintiff could establish that he was harassed based on his national origin, Korean, where his supervisor allegedly subjected Korean workers to abuse based on their failure to “live up” to the stereotype that Korean workers are “better than the rest”). As appropriate, the Commission will resolve a charge based on the information submitted in support of asserted defenses, including religious defenses, in order to minimize the burden on the employer and the charging party.
11 See, e.g., § II.B.3, infra (explaining that harassment based on stereotypes about a protected group need not be motivated by animus or hostility toward that group). The Commission carefully considered all the comments it received in the process of revising the draft and preparing the final guidance. The major issues raised in the comments and the Commission’s responses are listed, summarized, and addressed below. 353 See Vance, 570 U.S. at ; Doe v. Oberweis Dairy, 456 F.3d 704, 717 (7th Cir. 2006).
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