Table Of Content
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).
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251 An employer’s duty to take reasonable corrective action to prevent harassment from continuing is discussed supra at section IV.C.3.b. 231 Sharp v. City of Hous., 164 F.3d 923, 929 (5th Cir. 1999) (“The concept of negligence thus imposes a minimum standard for employer liability—direct liability—under title VII, a standard that is supplemented by the agency-based standards for vicarious liability as articulated in Faragher and [Ellerth].” (internal quotation marks and citation omitted)); Wilson v. Tulsa Junior Coll., 164 F.3d 534, 540 n.4 (10th Cir. 1998) (“The Supreme Court recognized in [Ellerth] and Faragher the continuing validity of negligence as a separate basis for employer liability.”). Co., 12 F.3d 668, 674 (7th Cir. 1993) (“Within the totality of circumstances, there is neither a threshold ‘magic number’ of harassing incidents that gives rise, without more, to liability as a matter of law nor a number of incidents below which a plaintiff fails as a matter of law to state a claim.”); see also Harris, 510 U.S. at 22 (explaining that the determination of whether harassment creates a hostile work environment “is not, and by its very nature cannot be, a mathematically precise test”). Lim Am., Inc., 296 F.3d 810, 817 (9th Cir. 2002) (concluding that the plaintiff could establish that he was harassed based on his national origin, Korean, where his supervisor allegedly subjected Korean workers to abuse based, in part, on their failure to “live up” to the stereotype that Korean workers are “better than the rest”). 47 The ADEA does not apply to discrimination or harassment based on workers being younger than others, such as harassment based on the belief that someone is too young for a certain position, even if the targeted individual is forty or over.
Substance of the Guidance
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.
Support
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).
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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).
The duty to exercise reasonable care to correct harassment for which an employer had notice is discussed in detail at section IV.C.3.b, below. Co., 731 F.3d 444, 459 (5th Cir. 2013) (en banc) (upholding a jury verdict on the grounds that a claim that a male employee was harassed because of sex could be established by evidence showing that the male harasser targeted the employee for not conforming to the harasser’s “manly-man” stereotype). Conduct that can affect the terms and conditions of employment, even if it does not occur in a work-related context, includes electronic communications using private phones, computers, or social media accounts, if it impacts the workplace.224 For example, if an Arab American employee is the subject of ethnic epithets that a coworker posts on a personal social media page, and either the employee learns about the post directly or other coworkers see the comment and discuss it at work, then the social media posting can contribute to a hostile work environment based on national origin. However, postings on a social media account generally will not, standing alone, contribute to a hostile work environment if they do not target the employer or its employees. Title VII prohibits employment discrimination, including unlawful harassment based on sex. Under Title VII, “sex” includes “pregnancy, childbirth, and related medical conditions” and sexual orientation and gender identity, as discussed in this section.
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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.
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Employers should retain records of all harassment complaints and investigations.[344] These records can help employers identify patterns of harassment, which can be useful for improving preventive measures, including training. These records also can be relevant to credibility assessments and disciplinary measures. Claudia is directly supervised by Dustin, the housewares department manager.
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).
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.
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