The Equal Employment Opportunity Commission (EEOC) recently released updated guidance on workplace harassment. This is the first released guidance in almost 30 years. The guidance addresses modern workplace dynamics, including increased awareness of LGBTQ+ rights and the rise in harassment cases.
Key Harassment Guidance Takeaways for Employers
The EEOC’s new guidance clarifies protected characteristics. The guidance also identifies workplace behaviors that the EEOC believes rise to the level of harassment. This guidance is an important tool for employers seeking to implement and enforce effective anti-harassment policies. Legal experts expect the guidance to be challenged on many fronts, even though it has been published. Yet, we encourage employers to become familiar with the basic guidance published and to start preparing for policy and training updates.
Broad Protections for LGBTQ+ Workers: The guidance clarifies Title VII protections for LGBTQ+ employees, emphasizing transgender rights. Specifically, the new guidance stipulates that “sex-based harassment includes harassment based on sexual orientation or gender identity, including how that identity is expressed.” This “harassing conduct” includes intentionally misgendering an individual or denying bathroom access “consistent with the individual’s gender identity,” according to the guidance.
Clarification on Religious Expression: Employers must accommodate religious beliefs. However, employers are not required to tolerate religiously motivated harassment that creates a hostile work environment.
Expanded Coverage for Pregnancy-Related Decisions: The EEOC has broadened the interpretation of pregnancy, childbirth, and medical conditions under the guidelines. This includes prohibited discrimination for decisions such as an employee’s choice of contraception or abortion, to name a few. Employers should interpret the guidance alongside the recent Pregnant Workers Fairness Act updates.
Recognition of Virtual Harassment: According to the guidance, harassment in virtual environments can be considered a violation of Title VII. “The growth of virtual work environments and the increasing impact of digital technology and social media on how harassment occurs in the work environment” is referenced in the guidance. Examples include sexist or ageist comments in a group chat. The guidance also includes “racist imagery” visible in an employee’s background during a virtual work meeting as possible harassment.
Guidance for Policy Updates: The EEOC guidance offers resources for employers to update their harassment policies, complaint procedures, and training programs. The EEOC released a summary of key provisions that employers should review.
What is Next for Employers in Response to Harassment Guidelines?
The EEOC has addressed some concerns raised by commenters and provided examples of harassment scenarios for better understanding.
Action Required: In light of the EEOC’s proposed guidance, it’s imperative that employers review their policies and ensure compliance with modern standards. Additionally, we recommended that managers undergo training to effectively address issues, conduct thorough investigations, and stay updated on harassment related developments.
The EEOC has a small business fact sheet to help navigate harassment. You can read it here.
We will continue to share best practices for implementing and monitoring these changes.
Disclaimer: This is not legal advice.
Sources and references: Fisher Phillips, Inc.com, EEOC.gov
