Preventing Harassment In The Modern Workplace: Complying With The EEOC's Newest Guidance For Employers
The EEOC's guidance includes expanded protections for LGBTQ+ workers, clarification on religious expression, and recognition of virtual harassment.
At a Glance
1. The EEOC recently released updated guidance on workplace harassment, marking the first comprehensive update in 25 years.
2. Key highlights include expanded protections for LGBTQ+ workers, clarification on religious expression, and recognition of virtual harassment.
3. While legal challenges are anticipated, employers must comply with the guidance immediately.
The Lede
The Equal Employment Opportunity Commission (EEOC) recently unveiled its revised enforcement guidance on workplace harassment, representing the most comprehensive update in 25 years. This guidance responds to evolving protections for LGBTQ+ employees and addresses emerging trends in sexual and racial harassment cases, serving as a crucial resource for employers, legal practitioners, and courts alike.
Expanded Protections for LGBTQ+ Workers
The guidance makes a significant stride by clarifying that harassment of LGBTQ+ employees, including transgender individuals, constitutes a violation of Title VII. This interpretation stems from the Supreme Court’s 2020 decision in Bostock v. Clayton County, affirming sexual orientation and gender identity discrimination as forms of sex discrimination. Concrete examples of harassment include intentional misgendering, such as not using an individual’s preferred pronouns, denial of access to gender-appropriate facilities, such as not allowing a transgender worker from using the restroom that aligns with their gender identity, and harassment based on non-conforming gender presentation.
Sexual Harassment and Pregnancy-Related Decisions
An important update is the expanded definition of sexual harassment to include pregnancy, childbirth, and related medical conditions. The revised definition encompasses protections against discrimination related to lactation, contraceptive choices, and decisions regarding abortion. Employers must align policies with these expanded protections and ensure compliance with accommodation requirements.
Clarification on Religious Expression
While employers must accommodate sincerely held religious beliefs, they also bear the responsibility of safeguarding employees from religiously motivated harassment. The guidance emphasizes engaging in the interactive process with employees requesting religious accommodations. Employers are not obligated to accommodate religious expression that creates a hostile work environment but should take corrective action when necessary.
Recognition of Virtual Harassment
Acknowledging the surge in remote work and online communication, the guidance underscores that harassment can occur virtually. Conduct communicated through email, instant messaging, or video conferencing platforms may constitute harassment under Title VII. Employers must address discriminatory speech in virtual environments and update policies accordingly.
Social Media
According to the EEOC's stance on social media use, when an employee shares offensive content on their personal account, and the content isn't directed at coworkers, it typically won't be categorized as harassment, even if coworkers view it and find it offensive. However, if the content specifically targets certain coworkers, it's more likely to be deemed harassing by the EEOC.
Policy Updates and Liability Standards
The guidance offers resources to assist employers in reviewing and updating their harassment policies, complaint procedures, and training programs. It delineates various forms of conduct that may constitute actionable harassment if sufficiently severe and pervasive, offering clear liability standards based on the harasser’s relationship to the employer and the nature of the harassment. When assessing whether behavior is deemed offensive to a reasonable individual, the EEOC adopts the perspective of a reasonable person within the victim's protected group rather than a generalized "reasonable person."
Several supporting resources were published, including a Summary of Key Provisions, a Q&A for workers, and a fact sheet for small businesses.
Legal Challenges Expected
While the guidance takes immediate effect, legal challenges are anticipated, particularly regarding its interpretation of gender identity discrimination. Employers should review policies, train managers to address harassment issues, and ensure a thorough investigation and corrective action procedures are in place.
Parting Thoughts
The EEOC’s recent guidance on workplace harassment is a timely reminder of the importance of prioritizing compliance and accountability in the workplace. While legal challenges may arise, employers must carefully review their existing policies and practices in light of this guidance to ensure alignment with the published legal standards and best practices currently in effect. By complying with the guidance, employers may reduce the risk of costly litigation, demonstrating their commitment to mitigating workplace harassment risks.
Release Date: June 6, 2024
Alonzo Martinez
Alonzo Martinez is Associate General Counsel at HireRight, where he supports the company’s compliance, legal research, and thought leadership initiatives in the background screening industry. As a senior contributor at Forbes, Alonzo writes on employment legislation, criminal history reform, pay equity, AI discrimination laws, and the impact of legalized cannabis on employers. Recognized as an industry influencer, he shares insights through his weekly video updates, media appearances, podcasts, and HireRight's compliance webinar series. Alonzo's commitment to advancing industry knowledge ensures HireRight remains at the forefront of creating actionable compliance content.