In 2024, and for the first time since 1999, the Equal Employment Opportunity Commission (“EEOC”) likely will publish new Enforcement Guidance on Harassment in the Workplace. On September 29, 2023, the EEOC issued Proposed Enforcement Guidance on Harassment in the Workplace, opening a thirty-day public comment period, a necessary legal step before adopting new guidance.

Noteworthy provisions of the proposed guidance include:

• Formally recognizing that sex-based harassment includes harassment based on sexual orientation and gender identity, including how that identity is expressed;
• Identifying baseline expectations for effective anti-harassment policies and training and the harassment complaint process;
• Clarifying when allegations of harassment are evaluated by the employer, the employer must examine the full context in which the conduct arises, noting in some contexts, terms may not be facially discriminatory when viewed in isolation may operate as code words revealing an intent to discriminate against a protected group. However, there is no “crude environment” exception to Title VII; prevailing workplace culture does not excuse discriminatory conduct;
• Detailing specific actions and responses employers should consider when investigating harassment to ensure a prompt and adequate investigation;
• Identifying specific factors that are relevant in evaluating whether an employer took corrective action that is reasonably calculated to prevent further harassment under the circumstances.

Employers should evaluate their current policies and practices in light of this proposed guidance. If adopted, employers may need to revise anti-harassment policies, conduct anti-harassment training, investigate allegations of potential harassment, and assess the appropriate response to substantiated harassment.