22 | EEOC-INITIATED LITIGATION: 2024 EDITION ©2024 Seyfarth Shaw LLP • Scope of Hostile Work Environment Claims: Conduct that can affect the terms and conditions of employment, even though 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.82 – Given the proliferation of digital technology, it is increasingly likely that the non-consensual distribution of real or computer generated intimate images using social media can contribute to a hostile work environment, if it impacts the workplace.83 The EEOC provides employers with what it views as a practical toolkit to prevent and correct harassment in the workplace using effective anti-harassment policies and training programs. In regards to employer antiharassment policies, the Proposed Guidance encourages employers to: (1) clearly identify accessible points of contact to whom reports of harassment should be made and include contact information, and (2) explain the employer’s complaint process, including the process’s anti-retaliation and confidentiality protections.84 The Proposed Guidance also lays out several features that anti-harassment trainings should include to maximize their effectiveness: • It explains the employer’s anti-harassment policy and complaint process, including any ADR process, and confidentiality and anti-retaliation protections; • It describes and provides examples of prohibited harassment, as well as conduct that, if left unchecked, might rise to the level of prohibited harassment; • It provides information about employees’ rights if they experience, observe, become aware of, or report conduct that they believe may be prohibited; • It provides supervisors and managers information about how to prevent, identify, stop, report, and correct harassment, such as actions that can be taken to minimize the risk of harassment, and clear instructions for addressing and reporting harassment that they observe, that is reported to them, or that they otherwise become aware of.85 Should the Proposed Guidance take effect as written, employers will face the challenge of balancing conflicting guidance. The EEOC’s requirement that employers act on out-of-work conduct that creates a hostile work environment is in apparent conflict with the National Labor Relations Board (NLRB) August 2023 decision requiring that employers take care not to place impermissible restrictions on employee speech, including out‑of-work speech on social media.86 Employers will also have to juggle the EEOC’s mandate that they “must take corrective action that is ‘reasonably calculated to prevent further harassment’” (emphasis added) with the NLRB’s May 2023 decision prohibiting employers from disciplining employees for certain harassing conduct that occurs while an employee is engaged in protected conduct.87 While the NLRB acknowledges the concern that conflicts could arise between its holding and antidiscrimination laws, it says only that it will cross that bridge if it comes. The EEOC’s draft enforcement guidance is silent on the topic. 82 Id. at 54. 83 Id. at 55. 84 Id. at 66-67. 85 U.S. Equal Employment Opportunity Commission, Proposed Enforcement Guidance on Unlawful Harassment, at 70. 86 Stericycle, Inc., and Teamsters Local 628, 372 NLRB No. 113 (2023) (holding that a facially neutral work rule is presumptively unlawful if a “reasonable” employee predisposed to engaging in protected concerted activity could interpret the rule to have a coercive meaning.”). 87 Lion Elastomers LLC II, 372 NLRB No. 83 (2023) (holding that employers must evaluate employee misconduct, including harassing conduct, against “setting-specific standards” to determine whether the misconduct is afforded impunity because the employee was engaged in conduct otherwise protected by the National Labor Relations Act.).
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