Employers have an affirmative legal obligation under federal and state employment discrimination laws to provide a workplace free from unlawful harassment. Not all harassment is illegal. Unlawful harassment is harassment on the basis of any protected characteristic, including race, color, sex, religion, disability, national origin, gender identity, sexual orientation, age, etc.

The harassment must be severe or pervasive in order to rise to the level of a hostile working environment. Courts use both an objective and subjective test to determine whether a work environment is hostile. The employee’s subjective beliefs alone will not suffice. The work environment must be such that a reasonable person would find it hostile or abusive. Courts look at the frequency of the discriminatory conduct, its severity, whether it is physically threatening and whether the conduct unreasonably interfered with the employee’s work performance.

Harassment can take many forms, including physical, verbal, written or visual conduct (e.g., unwanted physical contact, posting offensive pictures, using slurs or derogatory terms, telling offensive jokes, sending emails or posting offensive comments).

In April, the U.S. Equal Employment Opportunity Commission issued its long-awaited “Enforcement Guidance on Harassment in the Workplace” which intended to encompass practical and legal developments from the past two decades. Practical developments include the use of technology (email, Zoom, artificial intelligence) and telecommuting (hybrid or remote work arrangements). Legal developments include the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, in which the Court ruled that employees are protected against discrimination because of gender identity or sexual orientation, the Pregnant Workers Fairness Act and Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act).

The Guidance provides numerous examples of what may constitute unlawful harassment.

The following points are some of the key takeaways from the Guidance:

• Sex-based harassment prohibited under Title VII of the Civil Rights Act of 1964 includes pregnancy, childbirth or related medical conditions. This includes issues such as lactation, morning sickness, use of contraceptives and whether or not to have an abortion. The examples provided by the EEOC include a coworker making negative comments about a pregnant employee who has received accommodations (work from home part-time and a flex schedule) for her morning sickness or negative comments about a female employee who is expressing breast milk in a private room at work or other inappropriate conduct such as intentionally disrupting the nursing breaks or faking intent to enter the room while she is pumping her breast milk.
• Sex-based harassment prohibited under Title VII includes harassment based on sexual orientation or gender identity. Harassing conduct can include outing (disclosure of a person’s sexual orientation or gender identity without their consent), misgendering (intentional and repeated use of a name or pronoun inconsistent with a person’s stated gender identity) and denial of access to a bathroom consistent with a person’s gender identity.
• Disability-based harassment prohibited under the Americans with Disabilities Act (ADA) includes harassment based on the disability of a person with whom the employee is associated. For example, an employee’s husband has cancer; the employee’s coworkers and supervisor begin commenting and questioning the employee’s ability to do her job or dedication to the company because she seems more focused on helping her husband than doing her job.
• Color-based discrimination prohibited under Title VII includes harassment based on an individual’s pigmentation, complexion, or skin shade or tone.
• The workplace is not limited to an employer’s physical offices. Harassment may occur within virtual work environments or in the use of technology (e.g., during Zoom meetings, group chats, email, etc.) or in a remote work setting. For example, sexist comments made during a video meeting or racist imagery that is visible in the background during Zoom calls.
• Intraclass harassment (harassment between members of the same protected class) and harassment based on stereotypes are prohibited.
• An employer may be liable for a hostile work environment created by non-employees (e.g., customers, vendors) if the employer either unreasonably failed to prevent the harassment or failed to take reasonable corrective action in response to the harassment about which the employer knew or should have known.

Employers should update their harassment policies and include examples of the types of conduct that are unacceptable. Employers must ensure that executives and managers have read and understand the company’s policy, including what can constitute unlawful harassment.

Annual harassment prevention training is recommended (and may be required in certain states or localities). An employer must also investigate and take prompt, appropriate action to remedy any unlawful harassment. Employers should also have a policy of no retaliation and remind employees that they will not be retaliated against for reporting any alleged unlawful harassment.

Employers must address any complaint of workplace harassment, regardless of whether the alleged harasser is a supervisor, coworker, customer, client or vendor, and regardless of whether the complainant and harasser are in the same protected class. Similarly, whether the conduct occurred in the physical office, over a Zoom video meeting or while the employee is working remotely from home, that should not affect the employer’s response.

The information in this article is provided for general information purposes only and does not constitute legal advice or an opinion of any kind. You should consult with legal counsel for advice on your institution’s specific legal issues.