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Updated EEOC Guidance May Require Revising Your Workplace Harassment Prevention Policies and Practices

By Mary Miller posted 05-10-2024 09:17 AM

  

On April 29, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance on workplace harassment, including expanding the definitions of sexual harassment and religious discrimination and increasing protections for LGBTQ+ workers, among other updates. 

It had been nearly 25 years since the EEOC last updated its workplace harassment guidance. The new guidance, approved 3-2 along party lines, took effect immediately.

The new guidance was part of the EEOC’s goal of acknowledging the increase in sexual and racial harassment claims in recent years and will provide broad protections to LGBTQ+ employees nationwide. It also serves to make clear to employers that harassment of LGBTQ+ employees, especially transgender workers, can be considered a violation of Title VII as a form of sex discrimination. In explaining the guidance, the EEOC cites the U.S. Supreme Court’s 2020 ruling in Bostock v. Clayton County, where the Court held that sex discrimination as defined in Title VII extends to bias based on sexual orientation and gender identity.  

Examples of harassment under the updated guidance include the misgendering of a person and harassment based on a person’s appearance that does not fit the stereotypical presentation. Additionally, not allowing a person access to the bathroom that is consistent with their gender identity would also be considered sex-based harassment. 

There was a similar attempt to issue updated guidance in 2017 to provide increased protections to LGBTQ+ employees. However, internal disagreements in the prior administration blocked it from being finalized. Following the release of the latest proposal in September 2023, more than 38,000 public comments were received by the EEOC. Many of those comments addressed concerns that the new guidance eliminates single-sex spaces at work and infringes on workers’ rights to free speech as it relates to the misgendering of workers as potential harassment. 

The updated guidance also includes an expanded definition of sexual harassment related to decisions around pregnancy, contraception, lactation, and abortion. These definitions coincide with the protections applied to pregnancy accommodations and implicate Title VII.

It is expected that the updated guidance will face legal challenges, but in the meantime, employers are encouraged to review and possibly update their anti-harassment policies and training and complaint procedures for their workers and supervisors. Employers Council can assist Consulting and Enterprise members in navigating this guidance and can provide recommendations for policy updates. Contact us at info@employerscouncil.org.

Mary Miller is an attorney for Employers Council.

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