Why It Matters

The legal landscape around workplace harassment claims under Title VII is shifting as the Equal Employment Opportunity Commission (EEOC) has rescinded key guidance and pending legislation seeks to codify standards. A recent Congressional Research Service report examines how courts interpret Title VII's prohibition on sex discrimination to cover harassment, despite the statute not expressly mentioning it. The EEOC's rescission in January of its 2024 Enforcement Guidance on Harassment in the Workplace has left ambiguity about which standards now govern complaints involving gender identity, sexual orientation, and other protected categories.

The Big Picture

Title VII does not expressly prohibit harassment, but the Supreme Court has interpreted the law to bar conduct so intolerable it alters the terms, conditions, or privileges of employment. Courts generally require that harassment be severe or pervasive to qualify as actionable, a bar the Supreme Court established in Harris v. Forklift Systems, Inc. in 1993. Courts acknowledge that bar is high, and circuit courts have applied it inconsistently. The Seventh Circuit allowed a groping case to proceed in Turner v. The Saloon, Ltd. in 2010, while the Eighth Circuit dismissed a similar groping case in LeGrand v. Area Resources in 2005, characterizing it as only three isolated incidents.

To establish employer liability for harassment, a court must consider whether the harasser had supervisory authority, whether the plaintiff suffered an adverse action, and whether the employer took steps to prevent and remedy harassment. When a supervisor's harassment culminates in such an action, the employer is strictly liable. When a supervisor harasses without a tangible employment action, the employer may assert an affirmative defense. For coworker harassment, employers are liable only if negligent, meaning they knew or should have known and failed to act.

Courts have applied Bostock to harassment claims, including a 2024 case involving a transgender prison guard subjected to daily taunting. However, Bostock expressly left open questions about bathrooms, pronouns, and the intersection with religious liberty rights. The Fifth Circuit held in 2023 that the Religious Freedom Restoration Act required an exemption to Title VII protections for sexual orientation and gender identity, adding another layer of complexity.

The EEOC voted 2–1 on January 22 to rescind its 2024 Enforcement Guidance on Harassment in the Workplace. That guidance had been used by courts and practitioners as interpretive authority. The rescission came in response to a federal court ruling that the guidance exceeded Title VII authority and in alignment with an executive order on gender identity. It is currently unclear whether the prior 1999 guidance is back in effect.

The Bottom Line

The BE HEARD in the Workplace Act, which is still pending in Congress, proposes to codify harassment standards, expand Title VII to small employers, clarify Bostock application to gender identity, restrict mandatory arbitration, and impose fines. Damage caps under Title VII, ranging from $50,000 to $300,000 depending on employer size, have not been adjusted for inflation in over 30 years.

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