Update: EEOC Issues Final Guidance on Workplace Harassment | JD Supra

The United States Equal Employment Opportunity (“EEOC”) has issued its final guidance on the “Report of Harassment in the Workplace,” the first of its kind in more than 20 years. This final guidance builds on various key points from the EEOC’s proposed guidance issued in the fall of 2023 and replaces five previous EEOC guidance documents issued from 1987 through 1999. laws affecting the area of work. Last month, the FTC issued its final rule seeking to ban most post-employment non-competes and the federal DOL released its final rule extending the limit of wages for many exempt workers.

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

• Pregnancy, Childbirth, and Related Medical Conditions (including Obstetrics and Gynecology): Sex-based discrimination can also include harassment based on a woman’s pregnancy, childbirth, or related health conditions, including issues related to “lactation” (which follows the law on final regarding the federal Pregnant Workers Fairness Act and the Provision of Emergency Protection for Nursing Mothers Act (PUMP Act)) and regarding reproductive decisions (eg, decisions about contraception and abortion). belly).
• Gender Identity Problems: Discrimination resulting from “intentional and repeated use of a name or pronoun that does not correspond to a person’s gender identity (wrong); or being denied access to a bathroom or other gender-segregated area that corresponds to a person’s gender identity.”

The final guidance clarifies that harassment of LGBTQ+ employees, particularly transgender employees, may be considered a violation of title VII. In reaching this decision, the EEOC found this to be a natural extension of the Supreme Court’s decision in Bostock v. Clayton County, 590 US 644 (2020), which held that Title VII sex discrimination includes discrimination based on sexual orientation and gender identity. Specifically, the comments in response to the proposed 2023 guidance stated that the EEOC exceeds most of the Stock and impose new obligations on employers. The final guide is inconsistent. According to the final guidance, the EEOC’s authority to address harassment based on gender identity related to sex-segregated spaces (such as bathrooms) and the intentional misuse of personal pronouns, appropriately comes from Stock the decision. Included examples of the types of behavior that may constitute illegal harassment based on sexual orientation and gender identity will help employers identify and address such behavior in the workplace.

• Challenges of Virtual Work Environment: Behavioral verification that occurs in real work situations, including electronic communications using private phones, computers or social media accounts, can contribute to a hostile work environment if it affects the workplace.

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

• Color Discrimination: The final guidelines emphasize that harassment based on color can occur where the harassment is based on a person’s color, skin color or shade or physical appearance. The final guideline provides an example that if a manager harasses dark-skinned Black employees but does not harass light-skinned Black employees, this may be evidence of color discrimination.
• Classification of Institutions: The final guidance explains that “organizational discrimination” (ie, discrimination based on a protected characteristic of another person with whom the employee interacts) can exist regardless of the “degree of closeness” between an employee and another person.
• Combined and Intraclass Horassment Problems: The final guidance provides some examples that highlight that discrimination can occur between members of the same protected group (for example, two people from the same community) or it can occur because of multiple characteristics. which are protected together (for example, discrimination because someone is both Black. and a woman).
• The Wrong Difference must be “Known” gender identity: The final guidance adds a definition of its model of discrimination based on sexism which emphasizes that it will result from “the repeated and intentional use of a name or pronoun that does not conform to a recognized gender identity” (in printed matter).
• Freelance Social Media Ads Are Generally Not Enough: The final guidance clarifies that postings to a social media account generally will not, by default, contribute to a hostile work environment if they do not target an employer or its employees.
• Revenge: The final guidance specifies that the legal standard for evaluating harassing conduct will depend on whether the conduct is challenged as part of a claim of harassment, retaliation, or both.
• Double Obligations for Religious Accommodation Matters: The final guidance provides additional clarification regarding employers’ “dual obligations” to accommodate sincerely held religious beliefs unless doing so would create undue hardship on the duty to protect employees against unlawful harassment, including “harassment motivated by religion or caused by religious expression.” The final guidance states that “an employer must accommodate an employee’s religious practice that is affirmative of engaging in religious speech at work , unless doing so would cause, or reasonably threaten to cause, a hostile work environment.”

Although this final guidance is already under legal challenge by 18 Republican attorneys in the United States District Court for the Eastern District of Tennessee, the final guidance remains in effect and is serve as a valuable tool for employers to learn about the ever-changing environment. the status of issues of discrimination and abuse. Employers and HR professionals should take the time to review the final guide and its helpful examples (77 in total) that can help train employees and managers on these issues and improve their harassment policies. necessary to prevent and address the problem of workplace harassment going forward.

Recruiters and HR professionals can also use the accompanying Summary of Key Terms, FAQs, and Small Business Fact Sheet to help digest all the information on the final guide. These accompanying documents, like the final guide, can also be used to help employers improve the effectiveness of their policies, training, and complaints and investigation procedures.

While these may be difficult times for employers, this is also a good opportunity for employers to re-evaluate their organizational culture to ensure a safe and effective work environment for everyone.

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