35 | EEOC-INITIATED LITIGATION: 2026 EDITION ©2026 Seyfarth Shaw LLP on religion, sex, or national origin, and does not include race and color.90 When bringing these minority group discrimination claims, the EEOC will not be held to a heightened evidentiary burden and will be assessed under the same evidentiary standard as all other claimants.91 G. Preventing Harassment In The Workplace The prevention of systemic workplace harassment has been one of the EEOC’s national enforcement priorities since 2013. In April 2024, the EEOC published its Enforcement Guidance on Harassment (“Enforcement Guidance”).92 The Enforcement 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.93 According to the Enforcement 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.94 Further, the Enforcement Guidance specifically sets forth the EEOC’s position that as a protected basis “sex” includes, but is not limited to, pregnancy, childbirth, or related medical conditions.95 Moreover, the EEOC announced that it will even entertain harassment claims based on (1) “perceived” membership in a protected class (even if the perception is incorrect),96 (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;97 (3) where the alleged harassment was not directed at the employee;98 and (4) in instances where the alleged harassment occurred outside of the workplace.99 The Enforcement Guidance is the EEOC’s first published guidance document in over two decades. While parts of the 2024 guidance are largely noncontroversial (for example, it is widely understood that epithets based on a protected class can serve as the basis for a harassment claim), the Enforcement Guidance treads some new ground. Some of the key new additions include: 90 See id. 91 Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303 (2025) 92 Office of Legal Counsel, U.S. Equal Employment Opportunity Commission, Enforcement Guidance on Harassment in the Workplace, ( Apr. 29, 2024), https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace#_ftn215 93 See id. 94 Id. At 9-21. 95 Id; see Walsh v. Nat’l Computer Sys., Inc., 332 F.3d 1150, 1160 (8th Cir. 2003)(upholding jury verdict finding the plaintiff was subjected to a hostile work environment based on pregnancy where the plaintiff’s supervisor made numerous derogatory comments about her pregnancy and required the plaintiff to provide advance notice and documentation of doctor’s appointments, even though the plaintiff’s coworkers were not required to provide such information for appointments); 42 U.S.C. § 2000e(k) (“The terms of ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions . . . .”); Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1747 (2020); Sch. Of the Ozarks, Inc. v. Biden, 41 F.4th 992, 995 (8th Cir. 2022)(“Bostock held that the statute’s prohibition on employment discrimination ‘because of sex’ encompasses discrimination on the basis of sexual orientation and gender identity.”) 96 See, e.g., Jones v. UPS Ground Freight, 683 F.3d 1283, 1299 (11th Cir. 2012)(‘[A] harasser’s use of epithets associated with a different ethnic or racial minority than the plaintiff will not necessarily shield an employer from liability for a hostile work environment.”); EEOC v. WC&M Enters., Inc., 496 F.3d 393, 401-02 (5th Cir. 2007) (concluding that the EEOC presented sufficient evidence to support its national origin harassment claim where coworkers repeatedly referred to an employee of Indian descent as “Taliban” or “Arab” and stated that “[t]his is America . . . not the Islamic country where you came from,” even though the harassing comments did not accurately describe the employee’s actual country of origin.) 97 See e.g., Frith v. Whole Foods Mkt., Inc., 38 F.4th 263 (1st Cir. 2022)(concluding that claims alleging discrimination based on interracial association “are fundamentally consistent with Bostock [v. Clayton County, 140 S. Ct. 1731 (2020)] and Title VII’s plain language prohibiting action ‘because of such individual []’ plaintiff’s race”). Barrett v. Whirlpool Corp., 556 F.3d 502, 512 (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). 98 See e.g., Ellis v. Houston, 742 F.3d 307, 320-21 (8th Cir. 2014) (concluding that the 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). 99 U.S. Equal Employment Opportunity Commission, Enforcement Guidance on Unlawful Harassment in the Workplace, see supra note 1, at 57.
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