By H. Mark Adams and Madison Gaines, Jones Walker LLP

The #MeToo movement, the COVID-19 pandemic, and a sharp spike in online stalking, doxing, and related threats have galvanized the efforts of employers and federal and state agencies to combat workplace harassment. While many of the most high-profile cases have involved entertainment and media personalities, businesses in every industry — including healthcare — have been put on notice: harassment will not be tolerated.

In this regard, on September 29, 2023, the US Equal Employment Opportunity Commission (EEOC) released its draft enforcement guidance on harassment in the workplace. This comes nearly a quarter of a century after the agency’s last published guidance (“Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors”), which was issued in 1999.

In its announcement, the EEOC noted that the guidance is intended to “provide clarity on new developments in the law and build on the commission’s previous work.” Although the contents of the guidance do not have the force and effect of law and do not bind the public in any way, employers are encouraged to take note of the commission’s views on, and its legal analysis of, harassment.

The commission’s guidance complements messaging from the World Health Organization (WHO), which has focused on issues involving “work-related abuse, threats or assaults among health workers, including physical, sexual, verbal and psychological abuse and workplace harassment.” The WHO notes that:

• “Violence and harassment affect all health worker groups and work settings in the health sector.
• Up to 62% of health workers have experienced workplace violence.
• Verbal abuse (58%) is the most common form of non-physical violence, followed by threats (33%) and sexual harassment (12%).”

Citing a number of studies, The Joint Commission, an organization dedicated to improving healthcare for the public in collaboration with other stakeholders, has similarly issued a statement commenting that “bullying has no place in health care” and offered a number of strategies to minimize harassment. These measures include education, effective anti-harassment policies, accountability, and the creation of a safety system and culture that does not tolerate undesirable behavior.

Among other issues, the EEOC’s new guidance focuses on several types of behaviors, as follows.

Sex-Based Harassment

Under the new guidance, sex-based harassment includes harassment based on pregnancy, childbirth, or other related medical conditions, as well as harassment based on sexual orientation and gender identity. The latter forms of harassment have generated increased attention in part due to federal, state, and local legislative proposals that seek to expand or limit the rights of transgender, non-binary, and other individuals who do not present in a manner that would stereotypically be associated with that person’s gender.

Examples of such harassment include:

• Use of epithets regarding sexual orientation and gender identity
• Physical assault
• Intentional or repeated use of a name or pronoun inconsistent with the targeted individual’s gender identity

The EEOC’s focus on this type of harassment follows the US Supreme Court’s 2020 decision in Bostock v. Clayton County, in which the Court ruled that sex discrimination includes bias on the basis of gender orientation and sexual identity.

Associational Discrimination

Associational discrimination occurs when harassment is based on someone’s association with another person in the same or a different protected class, including close familial relationships such as marriage to, or maintaining a close friendship with, another individual belonging to a protected class. In its new guidance, the EEOC clarifies that harassment does not need to be based on an individual’s own characteristics but can arise because of their association with another individual.

Unwelcomeness

As diversity, equity, and inclusion (DEI) initiatives have grown, courts have addressed the unwelcomeness of an alleged harasser’s conduct in determining the presence of subjective hostility, which itself is one basis for identifying a hostile work environment.

However, including unwelcomeness as an additional element in the legal analysis of harassment may cause some confusion. Further, the EEOC reasons that such analysis is unnecessary because conduct that is subjectively hostile will, by definition, be unwelcome. Therefore, the EEOC encourages employers to avoid focusing on whether they believe the conduct was welcomed by the employee, but rather on whether the employee finds it personally offensive.

Conduct Not Directed at a Complainant

Harassment can affect an individual employee even when conduct is not directed toward that person. Employees may, for example, be able to file a charge against their employer based on unlawful harassment of a third party. This expands the scope of liability, as an employer may be found liable for having a hostile work environment for multiple individuals despite the fact that specific forms of harassment were aimed at only one individual.

Conduct Outside the Workplace

In general, employers are not liable for conduct that occurs outside the workplace — but they may, however, be liable for conduct that has consequences within the workplace and that contributes to a hostile work environment. For example, if an employee posts racial slurs on a social media platform and the post is discussed at work, the social media posting can contribute to a hostile work environment.

Systemic Harassment

The presence of systemic harassment — where multiple individuals are the targets of similar forms of discrimination — can be seen as subjecting all the employees of a protected group to the same circumstances. If evidence of widespread race-based harassment is found, the evidence could be used to show that each individual employee from a protected class was subjected to an objectively hostile work environment, greatly increasing the employer’s potential liability.

Although it is not binding, the EEOC’s September 29 guidance should be taken seriously. As noted above, the guidance does not have the force and effect of law. It does, however, provide insight as to how the EEOC plans to approach investigations and enforcement actions in response to workplace harassment claims, in the healthcare setting and beyond.

H. Mark Adams is a partner in the Labor & Employment Practice at Jones Walker LLP. For more than 30 years, Mark has represented employers in disputes before federal and state courts and regulatory agencies. Drawing on the depth and breadth of his experience, he counsels employers on the development of effective human resources policies, procedures, and strategies for complying with federal and state labor and employment laws. He can be reached at madams@joneswalker.com.

Madison Gaines is an associate in the Labor & Employment Practice at Jones Walker LLP. Madison helps employers resolve employment-related disputes and provides day-to-day compliance advice regarding workplace issues. She can be reached at mgaines@joneswalker.com.