EEOC Proposes Updated Harassment Guidance

Employment Law

For the first time since 1999, the Equal Employment Opportunity Commission (EEOC) has issued guidance on harassment in the workplace.

The agency noted that between fiscal years 2018 and 2022, 35 percent of the charges of employment discrimination filed included an allegation of harassment based on race, color, national origin, religion, sex (including pregnancy, sexual orientation and transgender status), age, disability or genetic information, demonstrating that workplace harassment remains a significant problem.

In 2017, the EEOC first released a proposed guidance on workplace harassment for public comment, but it was not finalized. The updated proposed guidance “reflects notable changes in law, including the Supreme Court’s decision in Bostock v. Clayton County, the #MeToo movement and emerging issues, such as virtual or online harassment,” the agency explained.

Referencing the Bostock decision, the “Enforcement Guidance on Harassment in the Workplace” document specifies that harassment based on sexual orientation and gender identity, including how identity is expressed, constitutes sex-based discrimination.

The EEOC provided a list of how such harassment may manifest in the workplace, such as physical assault; epithets regarding sexual orientation or gender identity; the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity; intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity, known as “misgendering”; or harassment because an individual does not present in a manner that would stereotypically be associated with that person’s gender.

Sex-based stereotyping (whether positive or negative) may also constitute harassment or discrimination, the agency said.

In the example for gender-based harassment, the EEOC discussed Jennifer, a cashier at a fast-food restaurant who identifies as female and alleged that supervisors, coworkers and customers regularly and intentionally misgendered her. One of her supervisors frequently used Jennifer’s prior male name, male pronouns and “dude” when referring to Jennifer, despite her request for the supervisor to use her correct name and pronouns. Other managers also referred to Jennifer as “he.”

In addition, coworkers had asked Jennifer questions about her sexual orientation and anatomy and asserted that she was not female. Customers also intentionally misgendered Jennifer and made threatening statements to her, but her supervisors did not address the harassment and instead reassigned her to duties outside of the view of customers.

“Based on these facts, Jennifer has alleged harassment based on her gender identity,” the EEOC wrote, noting that the facts were based on a case out of Pennsylvania.

In the proposed guidance, the agency also provided employers with a road map to an effective anti-harassment policy.

Specifically, the EEOC suggested that the policy define what conduct is prohibited; require that supervisors report harassment of which they are aware; offer multiple reporting avenues for an employee, during both work hours and other times (weekends or evenings); clearly identify accessible points of contact to report harassment (complete with contact information); and provide an explanation of the complaint process, including the ability to bypass a supervisor, along with anti-retaliation and confidentiality protections.

An effective policy, according to the proposed guidance, should also be disseminated widely; be implemented effectively; and be comprehensible to employees, including those who speak other languages, have limited literacy skills or face other barriers to comprehension.

As for the complaint process, the EEOC said that in addition to adequate confidentiality and anti-retaliation protections, a policy should include prompt and effective investigations and corrective action.

To read the EEOC’s proposed guidance, click here.

Why it matters

Employers should keep an eye on the progress of the updated guidance, which is open for public comment until November 1, 2023.



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