Key Takeaways:
- The EEOC's new Guidance states that Title VII prohibits harassment based on gender identity, including intentional misgendering and restrictions on bathroom access.
- The Guidance also focuses on technology's role in harassment, explaining that Title VII prohibits harassment in virtual work environments.
- The Guidance takes effect immediately.
On April 29, 2024, the Equal Employment Opportunity Commission
(EEOC) issued its Enforcement Guidance on Harassment in the
Workplace (the "Guidance"). The Guidance sets forth
the EEOC's position on harassment that constitutes unlawful
discrimination under Title VII of the Civil Rights Act ("Title
VII"), which is one of several statutes that the EEOC
enforces. The Guidance, which was approved by a majority vote of
the Commission, is the EEOC's first update to its
anti-harassment guidelines since 1999 and provides the EEOC's
views of harassment-related issues facing workplaces in the 21st
century.
The Reasons for the New Guidance
The Guidance is intended to incorporate both practical and legal
developments from the past 25 years. Practically speaking, the
internet has transformed the workplace in the past quarter-century.
Some technological developments—like email and
videoconferencing—have become integral to how businesses
operate. Even if not formally sanctioned or adopted by an employer,
technology, like online forums and AI technology, can interfere in
workplace dynamics. The Guidance attempts to account for these
shifts.
Additionally, the Supreme Court's 2020 decision in Bostock v. Clayton County, in which
the Court held that Title VII's ban on discrimination based on
sex also prohibits discrimination based on gender identity and
sexual orientation, dramatically altered the Title VII landscape.
After the Court issued the Bostock decision, the EEOC
convened a bipartisan Select Task Force on Harassment in the
Workplace and issued a report detailing its findings and
recommendations. This Guidance applies Bostock to the
harassment context, explaining that harassment based on gender
identity or sexual orientation constitutes unlawful sexual
harassment under Title VII.
What Constitutes Harassment Under the New
Guidance
Through the Guidance, the Commission addresses the variety of forms
harassment can take in the 21st-century workplace. Consistent with
decades of precedent, harassment violates Title VII only if it is
based on a protected characteristic and affects a term, condition,
or privilege of employment. Conduct that is severe or pervasive
enough to establish a hostile work environment is unlawful
harassment. Over the course of 77 examples, the Guidance provides
the Commission's position regarding what constitutes protected
classes and harassing conduct. The Commission's more notable
stances include the following:
- Sex-based harassment includes harassment based on sexual identity and sexual orientation. Asking "intrusive questions about a person's sexual orientation, gender identity, gender transition, or intimate body parts," for example, can constitute harassment. Harassing conduct also includes "repeated and intentional" misgendering or denial of access to a bathroom consistent with an employee's gender identity.
- Unlawful harassment based on pregnancy or childbirth may include issues such as lactation and decisions regarding contraception and abortion. Harassing conduct may include, for example, teasing comments about a man's decision to get a vasectomy or conduct interfering with an employee's use of a lactation room.
- Harassment based on "color," an individual's pigmentation, complexion, or skin tone, is prohibited under Title VII.
- Conduct over video meetings can contribute to a hostile work environment, including not only comments made during a video meeting but also offensive "imagery that is visible in an employee's workspace while the employee participates in a video meeting."
- Conduct on non-work-related platforms, such as social media accounts, may contribute to creating a hostile work environment, but are generally not enough, standing alone, particularly if they do not target the employer or specific employees.
- A hostile work environment may be established by a single incident of harassment, including the display of symbols of violence or hatred, use of denigrating animal imagery, and the use of racial epithets.
- Title VII prohibits "intraclass harassment," meaning harassment based on a protected characteristic but conducted by a member of the same protected class. One illustration the Guidance provides, for example, is a female employee's belittling comments to a female coworker for either having children ("shouldn't mothers stay at home with their kids?") or not having children ("it is sad to watch you choose a career over a family"). This conduct constitutes sex-based harassment even though all parties are women.
Looking Ahead
The Guidance takes effect immediately, although it can be expected
to face legal challenges. The EEOC published draft guidance on
October 2, 2023 and received over 38,000 public comments in
response. Some of those responses included letters explicitly
threatening litigation should the guidance be finalized as written.
The Guidance appears to anticipate some of these potential
challenges, such as challenges based on religious discrimination
grounds, noting that while sincerely held religious beliefs should
be protected, employers are not required to accommodate religious
expression "that creates, or reasonably threatens to create, a
hostile work environment."
Still, despite these expected legal challenges, employers should
reevaluate their harassment policies in light of the new Guidance.
The Guidance itself encourages employers to have clear harassment
policies, implement a safe and effective system for employees to
report harassment, and provide recurring training to all employees
about its policies.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
We operate a free-to-view policy, asking only that you register in order to read all of our content. Please login or register to view the rest of this article.