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EEOC Releases Updated Enforcement Guidance on Harassment

by Jennifer Shaw and Melissa Whitehead | | May 6, 2024

For the first time since the 1990s, the EEOC has issued new enforcement guidance on workplace harassment – applying existing law to the modern workplace. The Guidance is not binding law, but it provides valuable insight as to how the law will be enforced.

The Guidance clarifies that unlawful sex discrimination includes discrimination on the basis of sexual orientation or gender identity. Examples include, among other things, disclosure of an individual’s sexual orientation or gender identity without permission (outing); harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex; repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.

The EEOC also addresses the dual obligations of both providing religious accommodations and protecting all workers against harassment motivated by religion or created by religious expression. Employers need not accommodate religious expression that creates an “objectively hostile work environment.” For example, if one employee attempts to persuade another employee of the correctness of his religious beliefs, over that employee’s objection, a reasonable person in that employee’s position may find it to be hostile. So, employers must accommodate an employee’s sincerely held religious practice of engaging in religious expression in the workplace, unless doing so would create or reasonably threaten to create a hostile work environment. Employers should take “corrective action” to address such religious expression.

In conjunction with the recently published Pregnant Workers Fairness Act regulation (see our recent blog post here), the EEOC expanded the definition of “sexual harassment” to include pregnancy, childbirth, and other “related medical conditions.” This means employees are protected against harassment and discrimination due to contraceptive choices and the decision to have (or not have) an abortion, among other things.

Finally, in recognition of the vast increase of remote workers since 2020, the guidance confirms that unlawful workplace harassment can occur in a virtual environment. The EEOC provides examples, such as, 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 workspace while the employee participates in a video meeting, or sexual comments made during a video meeting about a bed being near an employee in the video image.

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Employers should make sure their current policies and practices align with this Guidance, and make sure their supervisors/managers understand how these laws apply in today’s workplaces. You can read the new Guidance here.

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