Update: EEOC issues final guidance on workplace harassment | JD Supra

The United States’ Equal Employment Opportunity Commission (“EEOC”) has issued its final guidance on “Workplace Harassment Enforcement Guidance,” the first of its kind in over 20 years. This final guidance builds on a number of key issues from the EEOC’s proposed guidance issued in the fall of 2023 and replaces five previous EEOC guidance documents issued from 1987 to 1999. The guidance follows other federal agencies updating or issue new guidelines or rules that affect the workplace. Last month, the FTC issued its final rule seeking to ban most post-employment noncompetes, and the federal DOL issued its final rule raising the minimum wage threshold for most exempt employees.

The EEOC’s final guidance—which is not legally binding—retains many of the points outlined in our summary of the proposed guidance, including:

• Pregnancy, childbirth and related medical conditions (including reproductive-based issues): Sex-based discrimination may also include harassment based on a woman’s pregnancy, childbirth, or related medical conditions, including issues related to “lactation” (which follows in the wake of a final rule under the Act federal Pregnant Workers Fairness and Emergency Maternal Protection Insurance for Nursing Mothers Act (PUMP Act)) and related to reproductive decisions (for example, decisions about contraceptives and abortion).
• Gender identity issues: Discrimination resulting from “intentional and repeated use of a name or pronoun that does not match the individual’s gender identity (misgendering); or denial of access to a bathroom or other gender-segregated facility consistent with the individual’s gender identity .”

The final guidance makes clear that harassment of LGBTQ+ employees, particularly transgender employees, may be considered a violation of Title VII. In reaching this conclusion, the EEOC found this to be a natural extension of the Supreme Court decision Bostock v. Clayton County, 590 US 644 (2020), which held that Title VII gender discrimination includes discrimination based on sexual orientation and gender identity. More specifically, comments in response to the 2023 proposed guidance claimed that the EEOC exceeded the scope of Bostock and imposed new obligations on employers. The final instruction disagrees. According to the final guidance, the EEOC’s authority to address harassment based on gender identity with respect to gender-segregated facilities (such as bathrooms) and the intentional misuse of an individual’s pronouns properly derives from Bostock decision The included examples of the types of behavior that may constitute unlawful harassment based on sexual orientation and gender identity will help employers identify and address such behavior in the workplace.

• Virtual work environment issues: Reaffirming that conduct that occurs in virtual work environments, including electronic communications using private phones, computers, or social media accounts, may contribute to a hostile work environment if they affect the workplace.

In addition, the final guidance added or otherwise emphasized several important points, including:

• Discrimination based on color: The final guidance states that color-based harassment can occur where there is harassment based on the pigmentation, color or shade or tone of an individual’s skin. The final guidance exemplifies that if a supervisor harasses darker-skinned black employees but does not harass lighter-skinned black employees, this may be evidence of color discrimination.
• Associative discrimination: The final guidance explains that “associate discrimination” (ie, discrimination because of the protected characteristic of another person with whom the employee associates) can occur regardless of the “degree of proximity” between the employee and the other individual.
• Intersectional and cross-class issues of bullying: The final guidance provides additional examples that emphasize that discrimination may occur between members of the same protected class (eg, two individuals of the same national origin) or may occur because of multiple protected characteristics that combine to together (eg, discrimination because someone is both black. and a woman).
• Misbehavior must be of “known” gender identity: The final guidance adds a clarification on its example of misgender discrimination that it states would be from “the repeated and intentional use of a name or pronoun that does not match the individual’s recognized gender identity” (emphasis added). added).
• Social media posts that stand alone are generally inadequate: The final guidance clarifies that posts on a social media account generally will not contribute to a hostile work environment unless they target the employer or its employees.
• Revenge: The final guidance states that the legal standards for evaluating harassing conduct will depend on whether the conduct is being challenged as part of a harassment claim, a retaliation claim, or both.
• Dual Obligations of Religious Accommodation Matters: The final guidance provides additional commentary on employers’ “dual obligations” to accommodate sincerely held religious beliefs, unless doing so would create an undue hardship on the duty to protect workers from unlawful harassment, including “motivated harassment by religion or created by religious expression.” The final guidance states that “an employer must accommodate an employee’s sincere religious practice to engage in religious expression in the workplace unless it would create or threaten to reasonably create a hostile work environment”.

While this final guidance is now subject to a legal challenge by 18 Republican attorneys general in the United States District Court for the Eastern District of Tennessee, the final guidance currently remains in effect and serves as an important tool for employers to learn about the changes. ever changing. the landscape in matters of discrimination and harassment. Employers and HR professionals should take the time to review the final guidance and its helpful examples (77 in total) that can help train employees and supervisors on these issues and update their harassment policies as needed to better prevent and address workplace harassment moving forward.

Employers and HR professionals can also use the accompanying Summary of Key Provisions, FAQs, and Small Business Fact Sheet to help digest all the information about the final guidance. These companion documents, like the final guidance, can also be used to assist employers in improving the effectiveness of their complaints and investigation policies, training, and processes.

Although these can be challenging times for employers, this is also a great opportunity for employers to re-examine their organizational culture to ensure a safe and professional work environment for all.

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