EEOC Issues Updated Harassment Guidance on LGBTQ+ Workers, Pregnancy Status, Remote Work and More

Equal Employment Opportunity Commission EEOC book hands holds.

EEOC Issues Updated Harassment Guidance on LGBTQ+ Workers, Pregnancy Status, Remote Work and More

May 1, 2024

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On Monday, April 29, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) published its long-awaited updated guidance on workplace harassment, reflecting recent changes in law for certain groups and the changing nature of the American workplace.  Here are the key facts and changes:

  • Effective Date: Immediately. It supersedes previous guidance issued by the Commission from the 1980s and 1990s.
  • Relevant Laws: The EEOC enforces federal anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act of 1967 (ADEA), the Genetic Information Nondiscrimination Act of 2008 (GINA), and the Pregnant Workers Fairness Act of 2022 (PWFA).
  • Sexual Orientation and Gender Identity: In its landmark 2020 decision, the U.S. Supreme Court held in Bostock v. Clayton County that employment discrimination under Title VII based on sex extends to discrimination based on sexual orientation or gender identity. The Commission updated its harassment guidance to be consistent with the Bostock decision, providing examples of harassing conduct based on sexual orientation or gender identity. Some examples include:
    • Outing, or disclosure of an individual’s sexual orientation or gender identity without permission;
    • Harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex
    • Misgendering, or repeated and intentional use of a name or pronoun inconsistent with an individual’s known gender identity; and
    • Denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.
  • Pregnancy: The updated guidance, meant to be read in tandem with recent changes the Commission made with respect to pregnancy accommodations, confirms that sex-based harassment under Title VII extends to harassment based on pregnancy, childbirth, or related medical conditions. It can be about topics such as:
    • Changes in physical appearance due to pregnancy;
    • Lactation;
    • Morning sickness; Using or not using contraception;
    • Deciding to have or not to have an abortion.
  • Remote Work: Recognizing the influx of remote work that has occurred since the COVID-19 pandemic, the Commission confirms in its new guidance that harassment is not limited to in-person workplace interactions. It can extend outside of the traditional work environment if conveyed using “work-related communication systems, accounts, devices or platforms,” such as an employer’s email system, electronic bulletin board, instant message system, videoconferencing technology, intranet, public website, official social media accounts, or other technologies. Some examples include:
    • Sexist comments made during a video meeting;
    • Ageist or ableist comments typed in a group chat;
    • Racist imagery that is visible in an employee’s remote workspace while participating in a video meeting;
    • Sexual comments made during a video meeting about a bed visibly near an employee.
  • Intersectional Harassment: The updated guidance reiterates through additional examples that harassment may be based on more than one protected characteristic of an employee and implicate one or more federal anti-discrimination laws. One example provided by the guidance is that a Black woman may be harassed both because she is Black and because she is a woman.
  • Intraclass Harassment: The updated guidance also confirms that intraclass harassment, or harassment against a worker of the same protected class, can occur and is not any less unlawful.

Employer Next Steps: While the guidance is effective immediately, it may be challenged by Republican lawmakers as impinging on freedom of speech and/or religion. Employers should consult with their Robbins Schwartz attorneys to ensure their equal employment opportunity and anti-harassment policies are compliant with the latest guidance and to evaluate whether additional training may be required for HR professionals to ensure they understand and are sensitive to these latest nuances to harassment law so as to minimize the risk of future liability and promote harassment-free workplaces.