[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1604.11]

[Page 198]
 
                             TITLE 29--LABOR
 
          CHAPTER XIV--EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
 
PART 1604_GUIDELINES ON DISCRIMINATION BECAUSE OF SEX--Table of Contents
 
Sec. 1604.11  Sexual harassment.

    (a) Harassment on the basis of sex is a violation of section 703 of 
title VII. \1\ Unwelcome sexual advances, requests for sexual favors, 
and other verbal or physical conduct of a sexual nature constitute 
sexual harassment when (1) submission to such conduct is made either 
explicitly or implicitly a term or condition of an individual's 
employment, (2) submission to or rejection of such conduct by an 
individual is used as the basis for employment decisions affecting such 
individual, or (3) such conduct has the purpose or effect of 
unreasonably interfering with an individual's work performance or 
creating an intimidating, hostile, or offensive working environment.
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    \1\ The principles involved here continue to apply to race, color, 
religion or national origin.
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    (b) In determining whether alleged conduct constitutes sexual 
harassment, the Commission will look at the record as a whole and at the 
totality of the circumstances, such as the nature of the sexual advances 
and the context in which the alleged incidents occurred. The 
determination of the legality of a particular action will be made from 
the facts, on a case by case basis.
    (c) [Reserved]
    (d) With respect to conduct between fellow employees, an employer is 
responsible for acts of sexual harassment in the workplace where the 
employer (or its agents or supervisory employees) knows or should have 
known of the conduct, unless it can show that it took immediate and 
appropriate corrective action.
    (e) An employer may also be responsible for the acts of non-
employees, with respect to sexual harassment of employees in the 
workplace, where the employer (or its agents or supervisory employees) 
knows or should have known of the conduct and fails to take immediate 
and appropriate corrective action. In reviewing these cases the 
Commission will consider the extent of the employer's control and any 
other legal responsibility which the employer may have with respect to 
the conduct of such non-employees.
    (f) Prevention is the best tool for the elimination of sexual 
harassment. An employer should take all steps necessary to prevent 
sexual harassment from occurring, such as affirmatively raising the 
subject, expressing strong disapproval, developing appropriate 
sanctions, informing employees of their right to raise and how to raise 
the issue of harassment under title VII, and developing methods to 
sensitize all concerned.
    (g) Other related practices: Where employment opportunities or 
benefits are granted because of an individual's submission to the 
employer's sexual advances or requests for sexual favors, the employer 
may be held liable for unlawful sex discrimination against other persons 
who were qualified for but denied that employment opportunity or 
benefit.

           Appendix A to Sec. 1604.11--Background Information

    The Commission has rescinded Sec. 1604.11(c) of the Guidelines on 
Sexual Harassment, which set forth the standard of employer liability 
for harassment by supervisors. That section is no longer valid, in light 
of the Supreme Court decisions in Burlington Industries, Inc. v. 
Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 
U.S. 775 (1998). The Commission has issued a policy document that 
examines the Faragher and Ellerth decisions and provides detailed 
guidance on the issue of vicarious liability for harassment by 
supervisors. EEOC Enforcement Guidance: Vicarious Employer Liability for 
Unlawful Harassment by Supervisors (6/18/99), EEOC Compliance Manual 
(BNA), N:4075 [Binder 3]; also available through EEOC's web site, at 
www.eeoc.gov., or by calling the EEOC Publications Distribution Center, 
at 1-800-669-3362 (voice), 1-800-800-3302 (TTY).

(Title VII, Pub. L. 88-352, 78 Stat. 253 (42 U.S.C. 2000e et seq.))

[45 FR 74677, Nov. 10, 1980, as amended at 64 FR 58334, Oct. 29, 1999]