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The Equal Employment Opportunity Commission (EEOC) updated its enforcement guidance on harassment in the workplace on April 29, 2023, for the first time in 30 years to adapt existing standards to the modern workplace. Specifically, the agency provides clarity in light of evolving protections for LGBTQ+ employees and in order to respond to the recent uptick in sexual and racial harassment cases.

Workplace harassment claims have become a serious matter for employers, particularly in the last several years. The EEOC first proposed new guidance on workplace harassment in 2017, amidst the #MeToo movement, but the agency never finalized it due to political infighting. This new guidance, is the first guidance on harassment since the 1990s.

While not governing law, the guidance is an extremely useful tool for employers and will surely be referenced by EEOC staff, employment attorneys, and courts. As a result of this new enforcement guidance, employers may need to update their harassment-prevention policies, procedures, and trainings.

Key Revelations in the Harassment Guidance

LGBTQ+ Workers: This guidance from the EEOC is significant for LGBTQ+ workers, particularly transgender employees, as it reinforces Title VII’s protections against harassment in the workplace. By explicitly stating that discrimination based on sexual orientation and gender identity falls under Title VII’s prohibition of sex discrimination, it aligns with the precedent set by the Supreme Court’s Bostock v. Clayton County decision in 2020.

The examples provided in the guidance, such as denying access to appropriate facilities or intentionally misgendering individuals, highlight common forms of harassment faced by transgender individuals in the workplace. By addressing these issues, the guidance aims to create a more inclusive and respectful work environment for all employees.

Employers now have a clearer understanding of their obligations to prevent and address harassment based on gender identity and sexual orientation. This guidance not only serves as a legal framework but also promotes diversity, equity, and inclusion in the workplace.

The new guidance makes clear that harassment of LGBTQ+ workers – particularly transgender employees – can be considered a Title VII violation. The EEOC concluded that this was a natural extension of the Supreme Court’s groundbreaking 2020 decision in Bostock v. Clayton County, holding that sexual-orientation discrimination and gender identity/transgender discrimination are forms of “sex” discrimination under Title VII.

Pregnancy-Related Decisions: The EEOC broadened its definition of sexual harassment to include pregnancy, childbirth, and other “related medical conditions.” This broader interpretation of sexual harassment not only aligns with existing laws and regulations but also reflects a commitment to promoting gender equality and ensuring that all employees are treated fairly and respectfully in the workplace, regardless of their reproductive choices or status. It reinforces the principle that pregnancy should not be a basis for differential treatment or harassment in any aspect of employment. By explicitly stating that decisions related to pregnancy, such as lactation, contraceptive choices, and the decision to have or not have an abortion, are protected against discrimination and harassment, the EEOC is providing important legal clarity and protection for pregnant employees.

Religious Expression: The EEOC’s guidance on religious expression in the workplace underscores both the need to accommodate employees’ sincerely held religious beliefs and prevent religiously motivated harassment. Employers are reminded of their duty to protect workers from harassment, including harassment based on religion. This means that while employers should engage in an interactive process with employees requesting religious accommodations, they are not obligated to accommodate religious expression that creates or reasonably threatens to create a hostile work environment. For example, if a religious employee attempts to persuade another employee of their beliefs, it may not necessarily be considered hostile. However, if the other employee objects to the discussion and it continues despite their objections, it could be deemed as harassment, and the employer should take appropriate corrective action.

This guidance aims to promote a respectful and inclusive work environment where employees can express their religious beliefs without infringing on the rights or comfort of others. It emphasizes the importance of proactive measures by employers to address and prevent religious harassment in the workplace.

Virtual Harassment: In light of the increasing prevalence of remote work since COVID-19, the guidance recognizes that harassment can occur virtually. The guidance reinforces the EEOC’s stance that discriminatory speech communicated through online platforms can still constitute harassment and violate Title VII. This means that sexist, racist, or otherwise discriminatory comments made via email, instant messaging, video conferences, or other online tools may be subject to the same legal scrutiny and consequences as harassment that occurs in person. The recognition that harassment can occur in virtual environments is an important acknowledgment by the EEOC.

Employers need to be proactive in addressing and preventing harassment in virtual work environments, just as they would in physical workplaces. This may involve implementing clear policies against harassment, providing training on appropriate online conduct, and promptly addressing any reports of harassment, regardless of whether they occur in person or online.

Policy Guidance: The new guidance includes resources to assist employers in reviewing and updating their harassment policies. The inclusion of resources to help employers review and update their harassment policies is a proactive step in addressing workplace harassment effectively. By using these resources, the EEOC is assisting employers in enhancing the effectiveness of their anti-harassment policies, complaint and investigation processes, and training initiatives, and can help create a more respectful and inclusive work environment.

Of Course, Legal Challenges Are Expected
After the EEOC initially proposed the updates back in September 2023, a coalition of 20 states said they would take legal action if the agency finalized certain aspects of the guidance. Based on the EEOC’s response and yesterday’s finalized guidance, we anticipate the coalition moving forward with a legal challenge for the courts to have the final say on the fate of this new guidance.

Plan of Action
While legal challenges may impact the EEOC’s enforcement guidance, the update took effect immediately. Employers should take certain steps now to stay compliant and promote a positive workplace culture:

  1. Review the Enforcement Guidance on Harassment in the Workplace.
  2. Ensure Compliance: Employers should review and update their policies to ensure compliance with legal standards. This includes having a clear “zero tolerance” policy for harassment and establishing a reporting policy that encourages employees to report concerns promptly. Consistent enforcement of these policies is essential to create a safe and respectful work environment.
  3. Train Managers: Supervisors must be adequately trained to identify and prevent harassment in the workplace. While some states mandate sexual harassment training for employees, it’s recommended that all employers provide this training regularly. Updating training materials annually ensures that managers stay informed about best practices and legal requirements.
  4. Properly Investigate Complaints: Employers must take all complaints of harassment seriously and conduct thorough investigations. It’s crucial to follow clear processes and involve properly trained professionals in investigating and addressing complaints. Taking appropriate corrective action when misconduct is found helps reinforce the organization’s commitment to a harassment-free workplace.

By implementing these measures, employers can proactively address and prevent workplace harassment, fostering a culture of respect and inclusivity. Effective policies, training, and investigation procedures not only mitigate legal risks but also promote employee well-being and productivity.

Employers should take this opportunity to reexamine organizational culture to ensure they are providing a safe and professional working environment for everyone.


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