NEWS

EEOC Issues New Workplace Harassment Guidance

May 3, 2024 – On April 29, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) published its “Enforcement Guidance on Harassment in the Workplace,” which can be found here: https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace. This guidance is meant to update, consolidate, and replace the EEOC’s previous guidance documents on the subject issued between 1987 and 1999. The updated guidance reflects notable changes in the law and culture, particularly the Supreme Court’s decision in Bostock v. Clayton County and the prevalence of virtual work. See https://www.eeoc.gov/newsroom/eeoc-releases-workplace-guidance-prevent-harassment. The EEOC relies on its enforcement guidance when investigating and litigating claims, and therefore employers who are seeking to implement and enforce anti-harassment policies should become familiar with it.

The new guidance sets out broad and comprehensive protections for LGBTQ+ employees. Sex-based harassment now includes harassment based on sexual orientation or gender identity, including how that gender identity is expressed. Examples of harassing conduct based on sexual orientation or gender identity include epithets regarding sexual orientation, physical assault due to sexual orientation or gender identity, outing (disclosure of an individual’s sexual orientation or gender identity without permission), harassment because an individual does not present in a manner that would stereotypically be associated with that person’s sex, repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering), or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity. The guidance then provides several example scenarios illustrating the ways that sex-based harassment may take place in the workplace. The EEOC clarifies that although the Bostock decision did not address bathrooms or lockers, the EEOC’s function sometimes requires it to take a position on whether an alleged type of conduct violates Title VII even in the absence of binding Supreme Court precedent.

The new guidance also expands the definition of sexual harassment to include pregnancy, childbirth, and other related conditions. This can include issues such as lactation, the decision to use or not use contraception, and the decision to have or not have an abortion. The illustrative examples provided in this section include employees being ridiculed for symptoms associated with pregnancy, such as morning sickness.

The EEOC also explains the employer’s duty to accommodate its employees’ sincerely held religious beliefs while also protecting its employees against religiously motivated harassment. The definition of harassment includes the use of religious epithets or offensive comments based on a complainant’s religion, or atheism/lack of religious beliefs. Harassing conduct based on religion can include one employee’s repeated discussion of religious topics after being asked by another employee to stop bringing up that topic, or one employee’s repeated attempts to get another employee to participate in religious practices at work, especially when the person urging the religious practices is a supervisor.

Finally, the updated guidance makes clear that the EEOC considers conduct to have occurred in the workplace even when it is conveyed using work-related communications systems, accounts, devices, or platforms, such as an employer’s email system, electronic bulletin board, instant message system, videoconferencing technology, intranet, public website, official social media accounts, or other equivalent services or technologies. Essentially, conduct within a virtual work environment can contribute to a hostile work environment just as with conduct within a physical workplace.

The new guidance is effective immediately barring judicial intervention, although the new guidance is likely to face legal challenges, particularly regarding free speech and religious-based rights. When the EEOC proposed these new guidelines in September of 2023, it received comments from the public, many of which focused on the implications on free speech and religious freedom in the workplace. The new guidance also includes resources to assist employers in reviewing and updating their harassment policies to best prevent and address workplace harassment moving forward. Employers should ensure their policies are consistent with these new standards, train managers to avoid common mistakes, and make sure all complaints are properly investigated and that corrective action is taken when improper conduct is found.

We intend to closely monitor legal challenges to the EEOC’s new guidance, as well as the EEOC’s attempts to enforce its new guidelines, and will keep clients informed about any subsequent developments.

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