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The Equal Employment Opportunity Commission’s (“EEOC”) guidance on harassment and discrimination was updated this week.  It marks the first time in 30 years that these standards have been modified and is intended to bring EEOC enforcement actions and guidance in line with today’s workplace. The agency’s new Guidance provides greater clarity for enforcement actions and protections for a variety of hotbed areas including sexual and racial harassment, as well as greater protections for LGBTQ+ workers and religious expression in the workplace. An electronic copy of the new EEOC guidance can be found here: New Guidance.

It is important for employers to note that the new EEOC guidance does not serve as law but rather as a tool and useful guideposts for employers, attorneys, the EEOC enforcement division, and the courts to reference when dealing with these types of matters.

Key Takeaways 

The new Guidance expands protections for LGBTQ+ employees and makes clear that harassment of LGBTQ+ workers is a Title VII violation.  The Guidance goes on to state that discrimination based on sexual orientation, gender identity, and transgender are all forms of “sex” discrimination under Title VII.

The EEOC’s guidance is based on recent court findings of unlawful conduct including (i) denying access to a bathroom based on an individual’s gender at birth, (ii) repeated and intentional misgendering of an employee (calling him a her even though they have identified themselves as a her and informed management of the same), and (iii)  harassment based on how an employee presents themselves (dressing in a way inconsistent with stereotypes associated with one’s gender).

Next, the Guidance broadens the definition of sexual harassment to include harassment based on pregnancy, childbirth, and other “related medical conditions.” According to the Guidance, employees are now also protected against discrimination (including harassment) based on conduct tangential to pregnancy, including lactation and the decision to have/not have an abortion.

The Guidance also provides clarification on protections associated with religious expression.  It has long been held that employers must accommodate an employee’s sincerely held religious beliefs.  The EEOC’s new Guidance goes further in clarifying that employers also hold a duty to protect employees from religiously motivated harassment. The Guidance offers us an example of such a situation, “[i]f a religious employee attempts to persuade another employee of the correctness of his beliefs, the conduct is not necessarily objectively hostile.  If, however, the employee objects to the discussion but the other employee nonetheless continues, a reasonable person in the complainant’s position may find it to be hostile.” In this type of situation, the employer must take corrective steps to address this behavior.

Finally, the Guidance confirms that unlawful harassment can take place virtually.  Cases of virtual harassment soared during COVID-19 and in its aftermath. As a result, the EEOC has provided new guidance to confirm harassment can be communicated in electronic form (email, IM, video, etc.).

What’s Next?

Expect some legal challenges.  Last September, several states objected to the EEOC’s draft guidance alleging the agency went too far in its protections based on gender identity.  However, the EEOC has since come out and said, “The proposed guidance did not attempt to – nor does the final guidance attempt to — impose new legal obligations on employers concerning any aspect of workplace harassment law, including gender identity discrimination.” 

Despite this assertion, we anticipate legal changes to be forthcoming and it will ultimately be up to the courts to decide if the EEOC is overreaching in its guidance.

How Should Employers Respond?

The EEOC’s new Guidance was issued with immediate effect and as such it will immediately impact how you should be dealing with your employees.  Despite any legal challenges that may impact enforcement, we recommend our clients follow the new Guidance as written until otherwise notified.

In doing so, all employers should review their employee handbooks and related policies to ensure their policies comply with these new standards.   Next, employers should make sure they train their employees and managers on these new standards.  Finally, employers must be sure to investigate all complaints properly using the new EEOC standards.

Conclusion

With the issuance of the new EEOC Guidance we believe now is the perfect time for employers to update their employee policies and handbooks to ensure compliance.  To help, Brody and Associates is offering 10% off its standard rate for Employee Handbook drafting and review. 

Additionally, with the new EEOC Guidance, it is a good idea to train your managers and employees on how to address these issues and avoid them in the first place. While not all states require harassment training for managers and employees, we believe it is a good idea for all employers to offer harassment training to their team. To further support our clients, we are offering 15% off our training rates to maintain a harassment and discrimination-free workplace in light of the new EEOC Guidance.

Call us today to arrange a time to speak with one of our attorneys about the new guidance, having your handbook updated, and teams trained.

Brody and Associates regularly advises management on complying with the latest local, state, and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.