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This guidance addresses harassment claims under provisions of the federal EEO laws that prohibit discrimination by employers, including section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1) (private sector and state and local government) and section 717 of Title VII, 42 U.S.C. § 2000e-16(a) (federal agencies). It does not address potential claims of unlawful harassment under provisions that prohibit discrimination by other entities covered under Title VII, such as employment agencies and labor organizations, including sections 703(b) and 703(c) of Title VII, 42 U.S.C. §§ 2000e-2(b) and 2000e-2(c). See, e.g., Dixon v. Int’l Bhd. Of Police Officers, 504 F.3d 73, (1st Cir. 2007) (upholding a jury verdict finding a union liable for sexual harassment that occurred during a union-sponsored bus trip). For these reasons, as stated in the final guidance, federal courts interpreting Bostock have readily found that unlawful workplace harassment based on sexual orientation or gender identity that constructively changes the terms and conditions of employment under section 703(a)(1) constitutes sex discrimination. See the cases cited in footnote 37 of the final Enforcement Guidance on Harassment in the Workplace.
B. Pattern or Practice of Harassment
App’x 780, 786 (11th Cir. 2019) (per curiam) (denying summary judgment to the employer on the Faragher-Ellerth affirmative defense where there was evidence that the employer had failed to take reasonable steps to disseminate its anti-harassment policy). 72 See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, (1998) (involving male employees sexually harassing a male coworker); Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 908 (7th Cir. 2018) (rejecting “entirely” the view that it “strains credulity” that African Americans might be subjected to unlawful race-based harassment where many managers in the same workplace were also African American and explaining that there are many reasons why women and minorities might tolerate discrimination against members of their own class or might participate in the discrimination themselves). 20 See, e.g., Abramson v. William Paterson Coll. Of N.J., 260 F.3d 265, 279 (3d Cir. 2001) (holding that a reasonable jury could find that hostility directed toward an Orthodox Jewish college professor regarding her insistence that she not work during the Sabbath constituted harassment based on religion); Ibraheem v. Wackenhut Servs., Inc., 29 F. 3d 196, 203, 214 (E.D.N.Y. 2014) (holding that a reasonable jury could conclude that the plaintiff was subjected to unlawful religious harassment after he received an exception to the employer’s no-beard policy as a reasonable accommodation when, for example, supervisors asked the plaintiff to see the letter documenting his religion and disciplined him for various infractions shortly thereafter).
Interplay Between Statutory Harassment Prohibitions and Other Rights
Other considerations also may be relevant in evaluating harassment in light of the totality of the circumstances. 151 A hostile work environment may be so intolerable that an employee is compelled to resign employment. Under these circumstances, the employee is said to have been subjected to a constructive discharge. State Police v. Suders, 542 U.S. 129, 134 (2004).
EEOC Authority
Following Harris, a number of courts have addressed unwelcomeness as part of determining subjective hostility, because conduct that is subjectively hostile will also, necessarily, be unwelcome.137 Other courts continue to analyze “unwelcomeness” as a separate element in a plaintiff’s prima facie harassment case, in addition to the “subjectively and objectively hostile work environment” analysis.138 In the Commission’s view, this latter approach incorporates an unnecessary step in a court’s legal analysis of workplace harassment. Sex-based harassment under Title VII includes harassment based on pregnancy,[30] childbirth, or related medical conditions.31 This can include issues such as lactation;[32] using or not using contraception;[33] or deciding to have, or not to have, an abortion.[34] Harassment based on these issues generally would be covered if it is linked to a targeted individual’s sex including pregnancy, childbirth, or related medical conditions. Dep’t of Transp., 563 F.3d 1052, 1064 (10th Cir. 2009) (stating that an employee should not necessarily be expected to complain after the first or second incident of relatively minor harassment and that an employee is not required to report “individual incidents that are revealed to be harassment only in the context of additional, later incidents, and that only in the aggregate come to constitute a pervasively hostile work environment”); Reed v. MBNA Mktg. Sys., Inc., 333 F.3d 27, (1st Cir. 2003) (noting that “sometimes inaction is reasonable” and concluding that the failure to report relatively minor incidents of harassment was not unreasonable). 88 In this document, use of the term “discriminatory” to describe conduct means only that the conduct was based on a protected characteristic and does not indicate that conduct necessarily satisfies other legal requirements to establish that the conduct violates federal EEO laws, such as creating a hostile work environment.
27 See, e.g., Waldo v. Consumers Energy Co., 726 F.3d 802, 815 (6th Cir. 2013) (explaining that non-sexual conduct can be based on sex and therefore contribute to a sex-based hostile work environment); Rosario v. Dep’t of the Army, 607 F.3d 241, 248 (1st Cir. 2010) (stating that conduct that does not have sexual connotations can contribute to a sex-based hostile work environment). Dev., Inc., 574 F.3d 604, 608 (8th Cir. 2009) (remanding hostile work environment claim to the district court in order to address summary judgment motion in the first instance where the district court had noted that the plaintiff “‘may have raised a genuine issue of material fact as to whether [] repeated comments about [the plaintiff’s] brother suffering in Hell and . . . needing to find God constituted a hostile work environment’” but also had erroneously analyzed the hostile work environment claim as a constructive discharge claim). The standards discussed here under EEOC-enforced laws will not necessarily apply to claims alleging unlawful harassment under other federal laws or under state or local laws. Finally, as noted above, to assist employers seeking to assert potential defenses, including religious defenses, in the context of individual charge investigations, the Commission is enhancing its administrative procedures and providing information to employers and respondents to charges.
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Robinson Worldwide, Inc., 567 F.3d 263, 274 (6th Cir. 2009) (concluding that the district court erred in requiring evidence that the complainant’s work performance suffered measurably as a result of harassment rather than merely evidence that harassment made it more difficult to do the job); Dawson v. Cnty. Of Westchester, 373 F.3d 265, 274 (2d Cir. 2004) (stating that the crucial question is “whether the workplace atmosphere, considered as a whole, undermined plaintiffs’ ability to perform their jobs, compromising their status as equals to men in the workplace”). Some commenters also expressed concern that, as they understood the guidance, any workplace discussion of religious perspectives on certain issues, such as abortion or gender identity, would be unlawful harassment.
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Specifically, the Commission will revise materials accompanying the Notice of Charge of Discrimination letter and related webpages to identify how employers can raise defenses in response to a charge. This information will be public and viewable by any employer with questions or concerns about how to raise a defense, including a religious defense, in the event that one of its employees files a charge of discrimination. The Commission also will update the Respondent Portal to encourage an employer to raise in its position statement (or as soon as possible after a charge is filed) any factual or legal defenses it believes apply, including defenses based on religion. Corrective action that leaves the complainant worse off could constitute unlawful retaliation.347 The employer should take measures to ensure that retaliation does not occur. For example, when management investigates a complaint of harassment, the official who interviews the parties and witnesses should remind these individuals about the prohibition against retaliation.
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271 See EEOC v. V & J Foods, Inc., 507 F.3d 575, 578 (7th Cir. 2007) (explaining that, although an employer need not tailor its complaint procedure to the competence of each employee, “the known vulnerability of a protected class has legal significance”). In V & J Foods, the victims of harassment were teenage girls working part-time, and often as their first job, in a small retail outlet. The court criticized the defendant’s complaint procedures as “likely to confuse even adult employees,” and stated, “[k]nowing that it has many teenage employees, the company was obligated to suit its procedures to the understanding of the average teenager.” Id. 259 Under such circumstances, the employee also would have a claim that the denial of a raise was because of sex.
Ridley v. Costco Wholesale Corp., 217 F. App’x 130, 138 (3d Cir. 2007) (declining to impose punitive damages where defendant provided new supervisors with detailed materials regarding supervisors’ obligation to address discrimination issues). 201 Compare Souther v. Posen Constr., Inc., 523 F. 55 See, e.g., Fox v. Gen. Motors Corp., 247 F.3d at 174 (upholding a jury verdict on a disability harassment claim based in part on evidence that a supervisor made disparaging comments about employees with disabilities assigned light duty, including calling them “hospital people,” supervising their work more closely, and segregating them from other employees); Pantazes v. Jackson, 366 F. 2d 57, 71 (D.D.C. 2005) (holding that a jury could find that unreasonably lengthy delays in responding to the plaintiff’s accommodation requests, combined with other harassing acts, were sufficient to establish a hostile work environment).
51 42 U.S.C. § 12112(a) (“No covered entity shall discriminate against a qualified individual on the basis of disability in regard to . . . terms, conditions, and privileges of employment.”). Section 501 of the Rehabilitation Act of 1973 prohibits employment discrimination against applicants or employees of the federal government who are individuals with disabilities. The Rehabilitation Act Amendments of 1992 made clear that the standards applied under Title I of the ADA also apply to Section 501 employment discrimination claims. To assist employers with potential defenses, including religious defenses, in the context of individual charge investigations, the Commission is enhancing its administrative procedures and webpages.
However, because the constitutional analysis of free speech and religion-based rights is different, the Commission addresses them separately. Section II.A of this guidance identifies the legally protected characteristics covered by the federal EEO laws enforced by the EEOC. Harassment must be based on an employee’s legally protected characteristic. 343 In the context of federal sector employment, federal agencies should consult with legal counsel to address potential Privacy Act concerns. 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.
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