©2023 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2023 EDITION | 47 E Preventing Harassment In The Workplace The prevention of systemic workplace harassment has been one of the EEOC’s national enforcement priorities since 2013. A few years ago, the EEOC published its Proposed Enforcement Guidance on Unlawful Harassment (“Proposed Guidance”).138 The Proposed Guidance was meant to replace several earlier EEOC guidance documents, aiming to define what constitutes harassment, examine when a basis for employer liability exists, and offer suggestions for preventative practices.139 According to the Proposed Guidance, the EEOC will find harassing conduct to be unlawful if the conduct is based on an individual’s race, color, national origin, religion, age, disability, or an individual or family member’s genetic test or family medical history.140 Further, the Proposed Guidance specifically sets forth the EEOC’s position that as a protected basis “sex” includes, but is not limited to, sex stereotyping, gender identity, sexual orientation, and pregnancy, childbirth, or related medical issues.141 Moreover, the EEOC announced that it will entertain harassment claims based on (1) “perceived” membership in a protected class (even if the perception is incorrect);142 (2) for “associational harassment,” where an employee who is a member of a protected class claims harassment based on his/ her association with individuals who do not share their protected characteristics;143 (3) where the alleged harassment was not directed at the employee;144 and (4) in instances where the alleged harassment occurred outside of the workplace.145 This proposed enforcement guidance, however, appears to have run headlong into the changing priorities at the EEOC, now that the Commission is led by a Republican slate of Commissioners. The guidance has been on hold since early 2017, while the EEOC has moved quickly on issues that seem closer to its new agenda, such as the updated guidance on religious discrimination. Nevertheless, remnants of the EEOC’s evolving views about harassment are evident in the types of lawsuits they have been brought around the country since the onset of the #MeToo era. Those cases are primed to have a sizeable impact on the law in this area. In fact, of the 16 new case filings this past fiscal year alleging harassment claims, 11 of those cases involved sex-based harassment/hostile work environment.146 The EEOC has had plenty of opportunity to shape the law of sexual harassment through its litigation activities. Those cases often hinge on two issues: whether the alleged actions rise to the level of unlawful harassment, and whether an employer can be held liable for harassment perpetrated by employees. The question of whether a pattern of conduct rises to the level of actionably harassment is highly fact-intensive and fraught with difficult judgment calls concerning the mental states of both the harasser and the victim. For example, in EEOC v. Ecology Services, Inc.,147 the EEOC alleged that the employer had subjected the 138 Office of Legal Counsel, U.S. Equal Employment Opportunity Commission, Proposed Enforcement Guidance on Unlawful Harassment, (Jan. 10, 2017), www.regulations.gov/docket?D=EEOC-2016-0009. 139 See id. 140 Id. at 5-9. 141 Id.; see e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) (“In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a women cannot be aggressive, or that she must not be, has acted on the basis of gender.”); Jameson v. U.S. Postal Serv., EEOC Appeal No. 0120130992, 2013 WL 2368729, at *2 (May 21, 2013) (stating that intentional misuse of transgender employee’s new name or pronoun may constitute sex-based harassment); Walsh v. Nat’l Computer Sys., Inc., 332 F.3d 1150, 1160 (8th Cir. 2003) (upholding jury verdict in pregnancy based hostile work environment claim where evidence showed that plaintiff was harassed because she had been pregnant and taken maternity leave, and might become pregnant again); EEOC v. Houston Funding II, Ltd., 717 F.3d 425, 430 (5th Cir. 2013) (holding that Title VII prohibits discharging an employee because she is lactating or expressing breast milk). 142 U.S. Equal Employment Opportunity Commission, Proposed Enforcement Guidance on Unlawful Harassment, supra note 429, at 9; see, e.g., EEOC v. WC&M Enters, Inc., 496 F.3d 393 (5th Cir. 2007) (concluding that the EEOC presented sufficient evidence to support its national origin harassment claim where coworkers harassing comments did not accurately describe employees actual country of origin). 143 U.S. Equal Employment Opportunity Commission, Proposed Enforcement Guidance on Unlawful Harassment, supra note 429, at 9; see, e.g., Barrett v. Whirlpool Corp., 556 F.3d 502, 513-14 (6th Cir. 2009) (holding that white employees could allege claim of racial harassment based on their friendship with and advocacy on behalf of African American coworkers). 144 U.S. Equal Employment Opportunity Commission, Proposed Enforcement Guidance on Unlawful Harassment, supra note 429, at 12; see, e.g., Ellis v. Houston, 742 F.3d 307, 320-21 (8th Cir. 2014) (concluding that District Court erred in evaluating plaintiffs’ section 1981 and section 1983 claims of racial harassment by examining in isolation harassment personally experienced by each plaintiff, rather than also considering conduct directed at others, where every plaintiff did not hear every remark, but each plaintiff became aware of all of the conduct). 145 U.S. Equal Employment Opportunity Commission, Proposed Enforcement Guidance on Unlawful Harassment, supra note 429, at 18. 146 EEOC v. Chipotle Services, LLC, 2:22-cv-279 (W.D. Wash.); EEOC v. Monson Fruit Co., LLC, 1:22-cv-3133 (E.D. Wash.); EEOC v. Mexico Restaurant, Inc., 1:22-cv-430 (D. Haw.); EEOC v. Armed Forces Services Corporation dba Magellan Federal, 3:22-cv-999 (S.D. Cal.); EEOC v. Teamsters Local Union No. 455, 1:22-cv-2520 (D. Colo.); EEOC v. Brinker Int’l Payroll Co., L.P. d/b/a Chili’s Grill & Bar, 3:22-cv-2017 (N.D. Tex.); EEOC v. Eden Foods, Inc., 2:22-cv-10881 (E.D. Mich.); EEOC v. Chipotle Mexican Grill, Inc., 2:22-cv-326 (M.D. Ala.); EEOC v. The Crab Stop Bar and Grill, LLC, 2:22-cv-14339 (S.D. Fla.); EEOC v. Ranger Tool and Die Inc., 3:22-cv-247 (E.D. Ark.); EEOC v. Landmark Dodge, Inc., 4:22-cv-614 (W.D. Mo.). 147 EEOC v. Ecology Services, Inc., No. 18-CV-1065, 2021 WL 3549978 (D. Md. Aug. 11, 2021).