The Equal Employment Opportunity Commission (EEOC) hopped on the bandwagon of employment law updates this week by updating its guidance to prevent workplace harassment. This guidance focuses on protecting covered employees from harassment based on race, color, religion, sex, national origin, disability, age, or genetic information.
Since the EEOC last issued guidance on workplace harassment, nearly 25 years ago, notable changes to the law have occurred, including the United States Supreme Court’s decision in Bostock v. Clayton County.
The new guidance largely mirrors what we have been advising over the past decade. It does contain a particular emphasis on gender identity and gender-based violence. It also addresses the growth of virtual workplace environments and the increasing impact of digital technology, electronic communications, and social media on workplace harassment issues.
Key Takeaways
- Protections for LGBTQ+ Workers – The updated guidance makes clear harassment of LGBTQ+ employees, particularly transgender employees, may violate Title VII. Denial of access to a bathroom consistent with the individual’s gender identity, the intentional and repeated mis-gendering of an individual, or the harassment of an individual because they do not present in a manner typically associated with their gender, are all examples of workplace harassment specific to LGBTQ+ employees. Much of the updated guidance is related to the United States Supreme Court’s decision in Bostock v. Clayton County, bringing the EEOC guidance in-line with federal law.
- Pregnancy Related Decisions – The EEOC broadened the definition of sexual harassment to include pregnancy, childbirth, and other “related medical conditions.” This includes decisions regarding lactation, contraceptive choices, and the decision to have or not have an abortion.
- Protection for Religious Expression – Employers are required to accommodate employees’ sincerely held religious beliefs under Title VII and also maintain a duty to protect workers against religiously motivated harassment. The updated guidance states employers are not required to accommodate religious expression that creates or “reasonably threatens to create” a hostile work environment. The guidance clarifies, “If a religious employee attempts to persuade another employee of the correctness of his beliefs, the conduct is not necessarily objectively hostile…If, however, the employee objects to the discussion but the other employee nonetheless continues, a reasonable person in the complainant’s position may find it to be hostile.”
- Virtual Harassment – If conduct occurs in the virtual environment and is communicated by email, instant message, videoconference, or other online technology, it may still violate Title VII. In an attempt to keep up with evolving technology in the workplace, the EEOC makes clear sexist, racist or other discriminatory speech communicated via these platforms may be harassment.
After the EEOC initially proposed updates in September 2023, a coalition of 20 states stated they would take legal action if certain elements of the guidance were finalized. Based on the finalized guidance, we expect the coalition to prepare a legal challenge in the near future. As with many of the other updates, legal challenges could delay full implementation of the updated guidance.
However, this new guidance is not all that “new,” and many employers have been working to keep harassment out of their workplaces in the way the EEOC now requires. This is still a great opportunity to ensure you are providing a safe and professional working environment for all your employees. The Labor & Employment team at Bricker Graydon is here to help with any questions you may have, whether it is a question about the EEOC or anything else employment related. Give us a call!
*Tommy Rogers is a law clerk and not licensed to practice law.
