EEOC Updates Workplace Harassment Guidelines for First Time in 30 Years
Contact Clara (C.B.) Burns, Gilbert L. Sanchez, Isaac J. Blanco and Metzeri A. Camacho -
May 1, 2024
Related Attorneys
Related Practice
The U.S. Equal Employment Opportunity Commission (“EEOC”) released updated workplace guidelines this week, marking the first change to those guidelines in 30 years. Although the guidance is not governing law, the EEOC states the document’s purpose is to serve as “a resource for employers, employees, and practitioners” and most notably, “for courts deciding harassment suits.” The document focuses on LGBTQ+ individuals and also provides guidance on pregnancy harassment, in addition to addressing non-work related conduct, virtual harassment, and religious expression.
This guidance, which takes effect immediately, "updates, consolidates, and replaces" previous guidance, and reflects both "emerging issues" and recent "legal developments," following one of the most notable legal developments in the U.S. Supreme Court’s decision in Bostock v. Clayton County, GA. (2020), holding that Title VII of the 1964 Civil Rights Acts encompasses bias based on sexual orientation and gender identity.
According to the guidance, harassing conduct based on sexual orientation or gender identity includes:
This guidance, which takes effect immediately, "updates, consolidates, and replaces" previous guidance, and reflects both "emerging issues" and recent "legal developments," following one of the most notable legal developments in the U.S. Supreme Court’s decision in Bostock v. Clayton County, GA. (2020), holding that Title VII of the 1964 Civil Rights Acts encompasses bias based on sexual orientation and gender identity.
According to the guidance, harassing conduct based on sexual orientation or gender identity includes:
- epithets regarding sexual orientation or gender identity
- physical assault due to sexual orientation or gender identity
- outing (disclosure of an individual’s sexual orientation or gender identity without permission)
- harassing conduct 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)
- the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity
The EEOC also provided two examples that it considers harassment based on one’s sexual orientation. In the first example, a staff journalist at a media conglomerate, recently attended a company award ceremony with her wife and a coworker called her a derogatory term relating to same sex couples and also asked “because you are both girly-girls, who is the man in your marriage?” He also repeatedly sent her text messages including the scissor emoji and scissor images as a euphemism for her sexual relationship with her wife. The guidance considers this to be sex-based harassment.
In the second example of sexual-orientation based harassment, a purchase order coordinator at a retail store warehouse, is approached by her supervisor, Alton, who asks whether she was “born a man” based on a rumor that “there was a transvestite in the department.” After the employee disclosed to her supervisor that she was transgender and asked him to keep this information confidential, “he instructed her to wear pants to work because a dress would be ‘inappropriate,’ despite other purchase order coordinators being permitted to wear dresses and skirts.” He also asked her inappropriate questions regarding her anatomy and sexual relationships and would intentionally use the wrong pronoun to describe her when he was frustrated with her (the EEOC considers this “misgendering” and cites caselaw where this behavior contributed to a sex-based hostile-work environment).
Pregnancy
The guidance also contains significant provisions regarding “pregnancy, childbirth, or related medical conditions.” The EEOC provides that sex-based harassment under Title VII can be based on lactation or reproductive decisions pertaining to contraceptives and abortion. The specific examples cited in the proposal that may amount to a hostile work environment are:
In the second example of sexual-orientation based harassment, a purchase order coordinator at a retail store warehouse, is approached by her supervisor, Alton, who asks whether she was “born a man” based on a rumor that “there was a transvestite in the department.” After the employee disclosed to her supervisor that she was transgender and asked him to keep this information confidential, “he instructed her to wear pants to work because a dress would be ‘inappropriate,’ despite other purchase order coordinators being permitted to wear dresses and skirts.” He also asked her inappropriate questions regarding her anatomy and sexual relationships and would intentionally use the wrong pronoun to describe her when he was frustrated with her (the EEOC considers this “misgendering” and cites caselaw where this behavior contributed to a sex-based hostile-work environment).
Pregnancy
The guidance also contains significant provisions regarding “pregnancy, childbirth, or related medical conditions.” The EEOC provides that sex-based harassment under Title VII can be based on lactation or reproductive decisions pertaining to contraceptives and abortion. The specific examples cited in the proposal that may amount to a hostile work environment are:
- Criticizing an employee who recently announced her pregnancy for working slow and using the restroom too often
- A coworker knocking on the door of a lactation room joking that he is going to come in and making inappropriate jokes about breast milk
- Coworkers making comments about an employee’s accommodation to telework up to three days a week to deal with morning sickness
It is important to note the EEOC released similarly broad protections regarding pregnancy in its Final Regulation on implementing the Pregnant Workers Fairness Act.
Nonwork-related Conduct and Virtual Harassment
The guidance states that “[a]lthough employers generally are not responsible for conduct that occurs in a nonwork-related context, they may be liable when the conduct has consequences in the workplace and therefore contributes to a hostile work environment.” The EEOC uses an example that if a black employee who is subjected to racist slurs and physically assaulted by white coworkers outside of work, then the presence of those same coworkers in the black employee’s workplace can result in a hostile work environment.
The EEOC provides that electronic communications using private phones, computers, or social media accounts, if it impacts the workplace, can affect the terms and conditions of employment. The guidance clarifies though that “postings on a social media account generally will not, standing alone, contribute to a hostile work environment if they do not target the employer or its employees.”
The guidance also provides that conduct within a virtual work environment can contribute to a hostile work environment. This can include “sexist comments made during a video meeting, ageist or ableist comments typed in a group chat, racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting, or sexual comments made during a video meeting about a bed being near an employee in the video image.”
Religious Expression
The EEOC acknowledges duties the employer may have under Title VII to accommodate employees’ sincerely held religious beliefs. The guidance provides that “to address these dual obligations, an employer should accommodate an employee’s sincerely held religious practice of engaging in religious expression in the workplace, unless doing so would create, or reasonably threaten to create, a hostile work environment.”
What does this mean for employers?
Given that the guidance took effect immediately, employers will need to immediately review and likely update their harassment-prevention policies, procedures, and trainings to incorporate these changes.
Nonwork-related Conduct and Virtual Harassment
The guidance states that “[a]lthough employers generally are not responsible for conduct that occurs in a nonwork-related context, they may be liable when the conduct has consequences in the workplace and therefore contributes to a hostile work environment.” The EEOC uses an example that if a black employee who is subjected to racist slurs and physically assaulted by white coworkers outside of work, then the presence of those same coworkers in the black employee’s workplace can result in a hostile work environment.
The EEOC provides that electronic communications using private phones, computers, or social media accounts, if it impacts the workplace, can affect the terms and conditions of employment. The guidance clarifies though that “postings on a social media account generally will not, standing alone, contribute to a hostile work environment if they do not target the employer or its employees.”
The guidance also provides that conduct within a virtual work environment can contribute to a hostile work environment. This can include “sexist comments made during a video meeting, ageist or ableist comments typed in a group chat, racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting, or sexual comments made during a video meeting about a bed being near an employee in the video image.”
Religious Expression
The EEOC acknowledges duties the employer may have under Title VII to accommodate employees’ sincerely held religious beliefs. The guidance provides that “to address these dual obligations, an employer should accommodate an employee’s sincerely held religious practice of engaging in religious expression in the workplace, unless doing so would create, or reasonably threaten to create, a hostile work environment.”
What does this mean for employers?
Given that the guidance took effect immediately, employers will need to immediately review and likely update their harassment-prevention policies, procedures, and trainings to incorporate these changes.
