September 29, 2023

The U.S. Equal Employment Opportunity Commission (EEOC) published aggressive new proposed “Enforcement Guidance on Harassment in the Workplace” that explains the legal standards and employer liability applicable to harassment claims under the federal employment discrimination laws enforced by the EEOC, which generally protect covered employees from harassment based on race, color, religion, sex (including sexual orientation, transgender status, and pregnancy), national origin, disability, age (40 and older), or genetic information. In particular, the proposed guidance is intended to build upon related guidance that the EEOC proposed in 2017 but never finalized, reflecting updates in law and policy, including the U.S. Supreme Court’s Bostock v. Clayton County decision (which held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because they are gay or transgender), the “#MeToo” movement, and emerging issues such as virtual and online harassment.

Of particular interest, the proposed guidance includes 40 examples demonstrating various harassment scenarios, three of which reflect fact patterns derived from actual cases involving the construction industry. For instance, “Example 3” on sex-based harassment involves “Aiko,” a female construction worker on a road crew alleging that she was subjected to unlawful sex-based harassment by her supervisor, who used sex-based epithets and disparaged women’s participation in the construction industry. The proposed guidance also includes “Example 9” addressing how causation is established based on sex stereotyping. This example involves “Eric” – an iron worker alleging he was subjected to sexual harassment from his foreman who called him “feminine” “pu__y,” “princess,” and “fa___t,” several times per day and approached Eric from behind and simulated intercourse with him all because of the supervisor’s perception that Eric did not conform to traditional male stereotypes and subjected Eric to harassment based on sex. Finally, regarding reasonable corrective action when an employer has notice of potentially harassing conduct, the guidance includes “Example 35” involving “George” – a construction worker who repeatedly complains to the superintendent that he is being harassed by a coworker because of his disability.   

Comments on this proposed guidance are due by November 1, 2023 and can be submitted here using Docket ID EEOC-2023-0005.

© 2024 Signatory Wall and Ceiling Contractors Alliance (SWACCA). All rights reserved.