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The federal Equal Employment Opportunity Commission (“EEOC”) recently released its first Enforcement Guidance on Harassment in the Workplace (“Guidance”) in over 25 years. You can find it here, plus a summary of key provisions also prepared by the EEOC here, as well as a fact sheet for small businesses.
The Guidance sets forth in detail the EEOC’s understanding of unlawful harassment with over seventy examples of workplace behavior for purposes of illustration, in addition to reliance on almost four hundred footnotes citing to various cases. This includes the EEOC’s explanation of the type of conduct that it believes could be deemed workplace harassment based upon sexual orientation, gender identity, pregnancy and pregnancy-related medical conditions. The Guidance is intended to be used by the EEOC and other agencies when investigating or litigating harassment claims. While courts are not bound by the guidance, they do regard it with deference.
In issuing the Guidance, the EEOC explained that it had done so in part due to the large percentage of harassment charges received and pursued by the EEOC in recent years, an interest in clarifying the impact of recent court cases on the law, as well as in order to provide clarity on newer and developing issues like harassment in a remote workplace scenario. We highlight a few of the take-aways below that employers should be aware of:
Sexual Orientation and Gender Identity
The Guidance confirms that sex-based harassment under Title VII includes harassment based on sexual orientation or gender identity. Per the EEOC, potentially harassing conduct on these bases include “outing” or disclosing an individual’s sexual orientation or gender identity without permission, “misgendering” or repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity, or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity. The Guidance provides an example of workplace conduct that illustrates potential harassment based upon gender identity. In the example, a supervisor tells a transgender employee that she has to wear pants to work even though others were permitted to wear dresses and skirts, asks her inappropriate questions about her anatomy and sexual relationships, and “misgenders” her by using, with emphasis, “he/him” pronouns.
Pregnancy and Related Medical Conditions
The Guidance explains that pregnancy, childbirth, or related medical conditions are protected categories, and clarifies that this can include issues such as lactation; using or not using contraception; or deciding to have, or not to have, an abortion. One of the examples provided involves employees expressing resentment towards a pregnant employee for seeming to get special treatment in response to her morning sickness. The guidance explains that this could be harassment based on a pregnancy-related medical condition: morning sickness.
No hypothetical examples are provided to illustrate what would be considered harassment surrounding a decision to have an abortion. Notably, the EEOC dedicates an entire section at the end of the Guidance to addressing concerns about the interplay between the harassment prohibitions and free speech and religion-based rights. The EEOC’s response to these concerns is that this interplay can be highly fact-specific, and the EEOC will carefully consider these issues as presented on a case-by-case basis. The EEOC also clarified that it is not saying that any workplace discussion of religious perspectives on certain issues, such as abortion or gender identity, would be unlawful harassment, but rather emphasized that the harassment inquiry depends on all the circumstances and whether the conduct also creates a hostile work environment. Finally, the EEOC noted that it is making efforts to assist employers with asserting potential defenses in response to a discrimination charge, including religious defenses.
Harassment in a Remote Workplace
Of particular note for today’s fully remote or hybrid remote workplaces, the EEOC Guidance explains that conduct can still be considered to be harassment even if it occurs in a remote workplace. Per the Guidance, this includes “conduct conveyed using work-related communications systems, accounts, devices, or platforms, such as an employer’s email system, electronic bulletin board, instant message system, videoconferencing technology, intranet, public website, official social media accounts, or other equivalent services or technologies.” Specifically, harassing conduct can be:
- if an employee makes offensive comments based upon a protected category during a zoom or teams video meeting such as a sexual comment about an employee being next to a bed on the video screen;
- if racist imagery is visible in an employee’s workspace during the video meeting;
- sexist, ageist, ableists or racist comments in a group instant message chat.
One example provided is of an employee who sends his coworkers racist jokes from his work email, and the supervisor does not intervene despite employee complaints.
The EEOC also suggests that posts on personal social media pages about coworkers could contribute to a hostile work environment, if for example a post included a racial epithet. However, if social media posts do not target the employer or its employees, they likely would not contribute to a hostile work environment. The EEOC declines to comment on the interplay between the Guidance and the National Labor Relations Act (“NLRA”); however, we urge you to discuss potential labor implications with your labor counsel before taking any action involving employees’ personal social media accounts.
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For California employers, the Guidance is not materially changing the landscape. California’s Fair Employment and Housing Act already specifically enumerates among its protected categories, gender (including pregnancy, childbirth, breastfeeding or related medical conditions), sexual orientation, gender identity, and gender expression. California’s Civil Rights Division already issued its own Guidance for Employers on Transgender Rights in the Workplace.
Nevertheless, the EEOC Guidance provides comprehensive insight into what kinds of comments and behavior might constitute harassment, and employers should review it for help navigating when to intervene in the workplace. In particular, even California employers may not be aware that conduct that is not in-person can still run afoul of harassment laws.
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