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Table Of Content

• C. The Scope of Hostile Work Environment Claims
• EEOC Headquarters
• Enforcement Guidance on Harassment in the Workplace
• Interplay Between Statutory Harassment Prohibitions and Other Rights
• A. Harassment Affecting Multiple Complainants
• A. Overview of Liability Standards in Harassment Cases
• B. Establishing Causation

Funding II, Ltd., 717 F.3d 425, 430 (5th Cir. 2013) (holding that Title VII prohibits discharging an employee because she is lactating). 11 See, e.g., § II.B.3, infra (explaining that harassment based on stereotypes about a protected group need not be motivated by animus or hostility toward that group). The Commission carefully considered all the comments it received in the process of revising the draft and preparing the final guidance.

C. The Scope of Hostile Work Environment Claims

352 See Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 342 (6th Cir. 2008) (concluding that, although separating the harasser and complainant may be adequate in some cases, it was not sufficient in this case where the wrongdoer was a serial harasser and management repeatedly transferred the harasser’s victims instead of taking other corrective action aimed at stopping the harasser’s misconduct, such as training, warning, or monitoring the harasser). 335 Waldo v. Consumers Energy Co., 726 F.3d 802, 814 (6th Cir. 2013) (stating that a base level of reasonable corrective action may include, among other things, prompt initiation of an investigation); Dawson v. Entek Int’l, 630 F.3d 928, 940 (9th Cir. 2011) (stating that an adequate remedy requires the employer to intervene promptly). 320 See, e.g., Nischan v. Stratosphere Quality, LLC, 865 F.3d 922, 931 (7th Cir. 2017) (holding that the employer could be liable if it knew or should have known of the non-supervisor’s harassing conduct yet failed to act). 282 See Ferraro v. Kellwood Co., 440 F.3d 96, 102 (2d Cir. 2006) (“An employer may demonstrate the exercise of reasonable care, required by the first element, by showing the existence of an antiharassment policy during the period of the plaintiff's employment, although that fact alone is not always dispositive.”).

EEOC Headquarters

Proof that the employee failed to use the employer’s complaint procedure will normally establish the second prong of the affirmative defense if following the procedure could have avoided the harm.290 In some circumstances, however, there will be evidence of a reasonable explanation for an employee’s delay in complaining or failure to utilize the employer’s complaint process.291 In addition, there will be instances when an employee’s use of mechanisms other than the employer’s official complaint process will be sufficient to demonstrate that the employee took reasonable steps to avoid harm from the harassment. If the harasser is an alter ego or proxy of the employer, the employer is automatically liable for unlawful harassment and has no defense.252 Thus, a finding that the harasser is an alter ego or proxy is the end of the liability analysis. This is true whether or not the harassment includes a tangible employment action. The first prong of the affirmative defense requires an employer to show that it exercised reasonable care both to prevent harassment and to correct harassment. To do so, an employer must show both that it took reasonable steps to prevent harassment in general, as discussed immediately below, and that it took reasonable steps to prevent and to correct the specific harassment raised by a particular complainant. Because the questions of whether the employer acted reasonably to prevent and to correct the specific harassment alleged by the complainant also arise when analyzing employer liability for non-supervisor harassment, those issues are discussed in detail at section IV.C.3.a (addressing unreasonable failure to prevent harassment) and section IV.C.3.b (addressing unreasonable failure to correct harassment).

Enforcement Guidance on Harassment in the Workplace

50 Under Title I of the Americans with Disabilities Act, a disability is “a physical or mental impairment that substantially limits one or more [of an individual’s] major life activities”; a “record of such an impairment”; or “being regarded as having such an impairment,” if the individual establishes that he or she has been subjected to an adverse employment action, such as harassment, because of an actual or perceived physical or mental impairment and that impairment is not both transitory and minor. 24 See Tillery v. ATSI, Inc., 242 F. 2d 1051, 1058 (N.D. Ala. 2003) (summary judgment to employer denied where the owner “repeatedly subjected plaintiff to lectures about her prospects for salvation during working hours, made highly personal inquiries into her private life (e.g., the legitimacy of her children, and whether a prior marriage had been terminated by divorce versus the doctrine of annulment sanctioned by the Catholic Church), and ‘strongly suggested [she] talk with God’”); see also EEOC v. Preferred Mgmt.

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Taken together, these two sections address whether conduct is based on a protected characteristic and, therefore, whether it can contribute to creating a hostile work environment. Section II does not address whether such conduct reaches the point of creating a hostile work environment. The next section of this guidance, section III, discusses how to determine whether harassing conduct rises to the level of a hostile work environment. 377 As discussed supra at section IV.C.3.b.ii(a) and section IV.C.3.b.ii(b), reassigning an employee who complains about harassment will generally not be an appropriate remedial measure and could possibly constitute retaliation. However, reassignment may be the only feasible option in circumstances where a temporary agency lacks control over the alleged harasser or workplace. Vance v. Ball State Univ., 646 F.3d 461, 473 (7th Cir. 2011) (concluding that the employer was not liable where it took reasonable steps to prevent the harassment from continuing), aff’d, 570 U.S. 421 (2013).

A. Harassment Affecting Multiple Complainants

62 Cases alleging harassment under GINA based on the manifestation of a disease or disorder in a family member likely will also be covered by the ADA’s prohibition against associational discrimination. See supra note 58 (discussing associational discrimination under the ADA). For example, if an employee is harassed because the employee’s mother has cancer, then the employee may raise claims under GINA, as well as under the ADA for associational discrimination.

That interpretation is not correct and is not the Commission’s intent. As discussed in the final guidance, whether conduct constitutes unlawful harassment depends on all the circumstances and is only unlawful under federal EEO law if it creates a hostile work environment. To help clarify that potentially offensive conduct based on a protected characteristic does not necessarily constitute unlawful harassment, the final guidance includes language in section I.B and at the beginning of section II to emphasize that conduct is not necessarily unlawful merely because it is based on a protected characteristic and that conduct also must alter a term, condition, or privilege of employment, typically by creating a hostile work environment. The Court in Bostock explained that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” and therefore held that discharging an employee because of sexual orientation or gender identity is unlawful sex discrimination that violates section 703(a)(1). See Bostock v. Clayton Cnty., 590 U.S. 644, 660, 683 (2020).

B. Establishing Causation

An employer is vicariously liable for a hostile work environment created by a supervisor.253 Under this standard, liability for the supervisor’s harassment is attributed to the employer. As discussed below, unlike situations where the harasser is an alter ego or proxy of the employer, an employer may have an affirmative defense, known as the Faragher-Ellerth defense, when the harasser is a supervisor. The availability of the Faragher-Ellerth defense is dependent on whether the supervisor took a tangible employment action against the complainant as part of the hostile work environment. If the Faragher-Ellerth defense is available, the employer bears the burden of proof with respect to the elements of that defense. The harassment being challenged must create an objectively hostile work environment from the perspective of a reasonable person in the complainant’s position.185 The impact of harassment must be evaluated in the context of “surrounding circumstances, expectations, and relationships.”[186] Discussed below are some significant aspects of context that can be relevant in determining whether harassment was sufficiently severe or pervasive to create a hostile work environment.

B. Structure of this Guidance

131 Section III.C.1, below, discusses how to determine whether conduct is sufficiently related to be part of the same hostile work environment claim. 110 See, e.g., Smith v. Fairview Ridges Hosp., 625 F.3d 1076, 1085 (8th Cir. 2010) (concluding that instances of facially neutral harassment were not connected to overtly racial conduct as they “lack[ed] any congruency of person or incident”), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc). For a discussion of how the link between harassment and a protected basis can be established by context, see section II.B.4. 70 Tetro, 173 F.3d at 994 (“A white employee who is discharged because his child is biracial is discriminated against on the basis of his race, even though the root animus for the discrimination is a prejudice against the biracial child.”).

Sheriff’s Off., 743 F.3d 726, 738 (10th Cir. 2014) (emphasis in original); id. at 741 (“Even if the [formal decision maker] undertook some independent analysis when considering employment decisions recommended by [the alleged harasser], [the alleged harasser] would qualify as a supervisor so long as his recommendations were among the proximate causes of the [formal decision maker’s] decision-making.” (emphasis in original)). 233 For a discussion of how to determine whether conduct is part of the same hostile work environment claim, refer to section III.C.1, supra. 227 See, e.g., EEOC v. Fairbrook Med. Clinic, P.A., 609 F.3d 320, 329 (4th Cir. 2010) (stating that the severity of the harasser’s conduct was exacerbated by his significant authority over the complainant). Co., 28 F.3d 1446, 1454 (7th Cir. 1994) (concluding that the plaintiff established harassment was subjectively hostile where, among other things, she told a friend about the conduct and then complained to her supervisor after learning from the friend that she had some legal recourse). 98 See, e.g., Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (observing that a person is considered transgender “precisely because of the perception that his or her behavior transgresses gender stereotypes” (citing Price Waterhouse, 490 U.S. at 251)); Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004) (stating that “discrimination against a plaintiff who is trans[gender]—and therefore fails to act and/or identify with his or her gender—is no different from the discrimination directed against Ann Hopkins in Price Waterhouse who, in sex-stereotypical terms, did not act like a woman”); see also supra note 78.

The terms are used in this document to facilitate discussion of the standards attached to each type of change to the terms or conditions of employment. 85 In this example, there was no evidence that the harassment was based on color, national origin, or any another legally protected characteristic. By contrast, harassment based on a legally protected characteristic is covered under EEO law even if it also is based on non-protected reasons.

102 See, e.g., Tomassi v. Insignia Fin. Servs., Inc., 557 U.S. 167 (2009). 97 See King v. Aramark Servs., Inc., 96 F.4th 546, 564 (2d Cir. 2024) (“[A] reasonable jury could conclude that Thomas’s singling out of King for weight-related remarks and conduct—remarks and conduct that he did not direct toward her male peers—reflected not only a bias against individuals with certain body types, but also a gender-based bias.”). 68 See, e.g., Zarda v. Altitude Express, Inc., 883 F.3d 100, 128 (2d Cir. 2018) (en banc) (“[W]e hold that sexual orientation discrimination, which is based on an employer’s opposition to association between particular sexes and thereby discriminates against an employee based on their own sex, constitutes discrimination ‘because of . . . sex.’”), aff’d on other grounds sub nom. Bostock v. Clayton Cnty., 590 U.S. 644 (2020).