The United States Equal Employment Opportunity (“EEOC”) has issued its final guidance on “Enforcement Guidance on Harassment in the Workplace,” the first of its kind in over 20 years.  This final guidance builds on a variety of key issues from the EEOC’s proposed guidance issued in the fall of 2023 and supersedes five previous EEOC guidance documents issued from 1987 through 1999.  The guidance comes on the heels of other federal agencies updating or issuing new guidance or rules impacting the workplace.  Last month, the FTC issued its final rule seeking to ban most post-employment noncompetes and the federal DOL released its final rule increasing the minimum salary threshold for most exempt employees.

The final EEOC guidance – which is not legally binding – retains many of the items outlined in our summary of the proposed guidance, including:

• Pregnancy, Childbirth, and Related Medical Conditions (including Reproductive-Based Issues): Sex-based discrimination can also include harassment based on a woman’s pregnancy, childbirth, or related medical conditions, including issues regarding “lactation” (which follows in the wake of a final rule regarding the federal Pregnant Workers Fairness Act and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)) and regarding reproductive decisions (for example, decisions regarding contraceptives and abortion).
• Gender Identity Issues: Discrimination emanating from the “intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.”

The final guidance makes plain that harassment of LGBTQ+ employees, particularly transgender employees, can be considered a Title VII violation.  In reaching this conclusion, the EEOC found this to be a natural extension of the Supreme Court’s decision in Bostock v. Clayton County, 590 U.S. 644 (2020), which held that Title VII sex discrimination encompasses discrimination based on sexual orientation and gender identity.  More specifically, comments in response to the 2023 proposed guidance claimed that the EEOC exceeded the scope of Bostock and placed new obligations on employers.  The final guidance disagrees.  According to the final guidance, the EEOC’s authority to address harassment based on gender identity related to sex segregated facilities (such as bathrooms) and intentional misuse of an individual’s pronouns, properly stems from the Bostock decision.  The included examples of the types of conduct that may constitute unlawful harassment based on sexual orientation and gender identity will help employers to identify and address such conduct in the workplace.

• Virtual Work Environment Issues: The reaffirmation that conduct that occurs in virtual work environments, including electronic communications using private phones, computers or social media accounts, can contribute to a hostile work environment if they impact the workplace.  

Additionally, the final guidance added or otherwise emphasized several noteworthy points, including:

• Color-Based Discrimination: The final guidance emphasizes that color-based harassment can occur where there is harassment based on an individual’s pigmentation, complexion, or skin shade or tone.  The final guidance provides as an example that if a supervisor harasses Black employees with darker complexions but does not harass Black employees with lighter skin tones, this may be evidence of color-based discrimination. 
• Associational Discrimination:  The final guidance explains that “associational discrimination” (i.e., discrimination because of the protected characteristic of another person that the employee associates with) can occur irrespective of the “degree of closeness” between the employee and the other individual.
• Intersectional and Intraclass Harassment Issues: The final guidance provides additional examples which highlight that discrimination can occur between members of the same protected class (e.g., two individuals of the same national origin) or may occur because of multiple protected characteristics which compound together (e.g., discrimination because someone is both Black and a woman). 
• Misgendering Must Be of “Known” Gender Identity: The final guidance adds a clarification on its example of discrimination based on misgendering that emphasizes it would be from the “repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity” (emphasis added).
• Social Media Posts Standing Alone Generally Insufficient:  The final guidance clarifies that postings on a social media account generally will not, standing alone, contribute to a hostile work environment if they do not target the employer or its employees.
• Retaliation: The final guidance emphasizes that the legal standards for assessing harassing conduct will depend on whether the conduct is being challenged as part of a harassment claim, a retaliation claim, or both.
• Dual Obligations of Religious Accommodation Issues: The final guidance provides additional commentary on the “dual obligations” of employers to accommodate sincerely held religious beliefs unless doing so would pose an undue hardship with the duty to protect workers from unlawful harassment, including “harassment motivated by religion or created by religious expression.”  The final guidance states that “an employer should accommodate an employee’s sincerely held religious practice of engaging in religious expression in the workplace, unless doing so would create, or reasonably threatens to create, a hostile work environment.” 

While this final guidance is already subject to legal challenge by 18 Republican attorneys general in the United States District Court for the Eastern District of Tennessee, the final guidance currently remains in force and serves as an important tool for employers in learning about the ever-changing landscape in discrimination and harassment issues.  Employers and human resources professionals should take time to review the final guidance and its helpful examples (77 in total) which can help in training employees and supervisors on these issues and update their harassment policies as necessary to best prevent and address workplace harassment moving forward. 

Employers and human resources professionals can also utilize the accompanying Summary of Key Provisions, FAQs, and Small Business Fact Sheet to assist in digesting all of the information regarding the final guidance.  These accompanying documents, like the final guidance, can also be used to assist employers in improving the effectiveness of their policies, trainings, and complaint and investigation processes. 

Although these can be challenging times for employers, this is also a great opportunity for employers to reexamine their organizational culture to ensure a safe and professional working environment for everyone.  

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