For more information please call  800.727.2766


Addressing Harassment in Virtual Work Settings: Insights from the 2024 EEOC Enforcement Guidance

As remote and hybrid work environments become increasingly prevalent, the dynamics of workplace interactions have transformed. While these changes offer numerous benefits, they also present unique challenges, particularly in managing and preventing harassment. On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) recognized these shifts and issued updated Enforcement Guidance (guidance). The guidance is consistent with the EEOC’s enforcement priorities: preventing and remedying systemic harassment and protecting vulnerable workers, as set forth in the Strategic Enforcement Plan Fiscal Years 2024-2028. In releasing the proposed guidance, the EEOC notes that harassment remains a serious workplace problem, with harassment claims appearing in more than one-third of the charges filed with the EEOC between fiscal years 2018 and 2023.

The new Enforcement Guidance on Harassment in the Workplace replaces and consolidates five prior guidance documents on workplace harassment issued by the agency between 1987 and 1999 and includes a summary of its key provisions, a fact sheet for small businesses, and a FAQ on harassment for employees. The previous guidance had been a foundational resource on not only harassment in the workplace but also how employers should respond to such complaints, including workplace investigations. The new guidance, at 149 pages, including over seventy hypothetical examples of potential unlawful harassment in the workplace, is a lot to take in.

In issuing the new guidance, the agency highlighted the emergence of new issues, such as harassment in virtual workplaces, and significant legal developments, including the 2020 US Supreme Court’s landmark decision in Bostock v. Clayton County, Georgia, which held that Title VII prohibits discrimination on the basis of sexual orientation and gender identity. The guidance notes several instances of potential harassment based on sexual orientation and gender identity, including outing an individual or repeated and intentional misgendering (the use of a pronoun or name to refer to a worker that does not comport with the impacted worker's gender identity). The guidance also provides that harassment may include comments or conduct aimed at an individual who does not present in a manner that would stereotypically be associated with that person's sex. While the guidance is likely to face legal challenges in the courts, employers may want to review their workplace policies and practices, particularly in light of potential liability for discrimination or harassment against LGBTQ+ employees.

This article will explore the updated guidance on harassment in virtual workplaces and key details for harassment investigations.

Understanding Harassment in Virtual Settings

Like harassment in a physical workspace, harassment in a virtual work environment can contribute to a hostile work environment. According to the EEOC's 2024 guidance, common forms of virtual harassment include:

  • Cyberbullying - sending abusive or threatening messages via emails, chat platforms, or social media
  • Inappropriate comments and jokes, such as making offensive remarks or jokes during virtual meetings or through messaging channels
  • Unwanted visual content, such as sharing offensive images, videos, or memes in virtual spaces
  • Exclusion and isolation - deliberately excluding individuals from virtual meetings or work-related communications, leading to professional isolation

The guidance includes over seventy examples to provide practical advice on most of the topics covered in the guidance[1]. An example of virtual harassment occurs when an employee sends racially offensive jokes through the employer’s email system. Despite complaints about the issue, the behavior continues, contributing to a hostile work environment as it occurs using work-related communication platforms.[2]

The 2024 guidance emphasizes several critical areas for preventing and addressing harassment in virtual and physical work settings, including implementing proactive prevention measures such as regular training, clear anti-harassment policies, and easy-to-access reporting mechanisms. The EEOC also reinforced the importance of conducting investigations into complaints of harassment.

This is not the first time the EEOC has stressed the importance of workplace investigations; however, the 2024 guidance underscores the significance of conducting prompt and effective harassment investigations. Delayed or poorly managed investigations not only exacerbate the harm to victims but may also expose employers to significant legal and reputational risks. When an employer learns of potential harassment, swift and thorough action is crucial to address the issue and prevent further misconduct. Conducting a prompt and thorough investigation and implementing appropriate corrective measures based on the investigation's findings is key.

EEOC Guidance on Prompt and Adequate Investigations

It’s more important than ever for employers to follow clear processes with properly trained professionals in investigating and acting upon complaints or other concerns of potential harassment. The guidance emphasizes that “once an employer has notice of potentially harassing conduct, it is responsible for taking reasonable corrective action to prevent the conduct from continuing. This includes conducting a prompt and adequate investigation and taking appropriate action based on the findings of that investigation.”[3] The guidance states that, regardless of the size and scope of the investigation, some indications of an effective investigation include:

Promptness: An investigation should begin as soon as possible after a complaint is made or the employer is otherwise notified of possible harassment. Immediate action, such as initiating an investigation the day after a complaint is filed, is ideal. Delays, such as waiting two months without valid reasons, are generally unacceptable. The investigation timing must consider the nature and severity of the alleged harassment. While quickly starting an investigation after the employer is put on notice is critical, the investigation should also be completed promptly. Prolonged investigations can undermine trust in the process and leave affected employees in prolonged distress.

Adequacy: The adequacy of an investigation is determined by whether it is sufficiently thorough to “arrive at a reasonably fair estimate of truth.”[4] Selecting unbiased investigators is crucial. They should have no conflict of interest in the case, approach the investigation without preconceived notions, and be well-trained in the skills required for interviewing witnesses and credibility determinations.

Thoroughness and Documentation: Every aspect of the complaint should be examined. This includes interviewing all relevant witnesses, reviewing documents, and considering any physical or digital evidence. Documenting every step of the investigation process is essential including review of initial reports, interview summaries, evidence collected, and the rationale for conclusions reached. Maintaining detailed records of all complaints and investigations helps identify harassment patterns and improve preventive measures.

Privacy Protection: Maintaining appropriate confidentiality throughout the investigation protects all parties' identities and reduces the risk of retaliation or workplace gossip. Information should only be shared with those directly involved in the investigation process, ensuring that the privacy of the complainant and the accused is respected.

Post-Investigation Procedures: Upon completing the investigation, the employer should inform both the complainant and the alleged harasser of the findings and of any actions to be taken, ensuring compliance with privacy laws. Additionally, offering support to all parties involved, such as access to counseling services or employee assistance programs, can help them navigate the aftereffects of the investigation.

Interim Measures: In serious cases, interim measures may be necessary to protect the complainant while the investigation is ongoing. These measures could include adjusting schedules, temporarily transferring the alleged harasser, or placing them on paid leave. Efforts should be made to avoid negatively impacting the complainant.

Preventing Retaliation: Corrective actions must not disadvantage the complainant, as this could be seen as retaliation. Employers should actively prevent retaliation by reminding involved parties of the anti-retaliation policy and carefully monitoring employment decisions affecting the complainant and witnesses during and after the investigation.

Practical Steps for Employers

While legal challenges may impact the EEOC’s enforcement guidance, the update took effect immediately. To align with the EEOC’s 2024 guidance, employers should take proactive steps to ensure their harassment investigations are conducted effectively and fairly, including:

  1. Update Policies and Procedures: Compare existing policies to the EEOC guidance and regularly review and update anti-harassment policies to reflect the realities of virtual work. Ensure these policies are comprehensive and easily accessible to all employees. Once policies are in place, you should ensure they are consistently enforced.
  2. Enhance Communication: Create an open communication culture where employees feel safe to report concerns without fear of retaliation. Regularly remind employees of the reporting mechanisms and support available to them.
  3. Monitor Virtual Interactions: Implement tools and practices to monitor virtual interactions for inappropriate behavior. This could include auditing chat logs or setting up alerts for certain types of language or behavior.
  4. Solicit Regular Feedback: Regularly solicit feedback from employees about their virtual work environment and any concerns they may have. This feedback can help identify and address issues before they escalate.
  5. Train Your Managers: The guidance is a reminder to ensure your supervisors are trained properly to identify and prevent workplace harassment and avoid common mistakes. While some states[5] require sexual harassment training, it is recommended that all employers provide this type of training regularly, regardless of what their state may or may not require. It’s also a good idea to review and update the training material every year.

The EEOC's 2024 Enforcement Guidance provides a crucial framework for addressing harassment in today’s diverse and dynamic work environments. By implementing these guidelines, employers can create a safer, more respectful, and more inclusive work environment. As remote work continues to be a significant aspect of our professional lives, staying vigilant and proactive in preventing and addressing harassment is more important than ever. By taking these steps, organizations can ensure that their virtual workplaces are just as respectful and harassment-free as their physical workplaces.

[1] Employers should remain aware of state antidiscrimination laws and similar guidance from state enforcement agencies, including state/local laws or state/local agency guidance that differs from Title VII’s protections and the EEOC’s proposed guidance.

[2] Enforcement Guidance in the Workplace, Example 55.

[3] Enforcement Guide in the Workplace, Prompt and Adequate Investigation.

[4] Id.

[5] Such as California, Connecticut, Delaware, Illinois, Maine, New York, and Washington.