The Equal Employment Opportunity Commission released its first new harassment guidance for employers since 1999. The guidance emphasizes that protections against sex-based harassment and discrimination extend to gender identity, sexual orientation, and pregnancy-related conditions, such as abortion.
Protections for gender identity, sexual orientation, pregnancy-related medical conditions: Much of the guidance is focused on addressing sexual harassment and discrimination in the wake of the Supreme Court’s decision in Bostock v. Clayton County in 2020, which held that Title VII prohibits discrimination on the basis of sexual orientation and gender identity. The guidance emphasizes that gender identity and sexual orientation harassment and discrimination can take many forms, including refusing to use a preferred name or pronoun.
Tension between anti-harassment/discrimination obligations and religious accommodations: The guidance acknowledges that employers must provide reasonable accommodations for employees with sincerely held religious beliefs that could potentially conflict with harassment and discrimination protections for gender identity and sexual orientation. However, the guidance emphasizes that such accommodations do not include allowing such employees to create hostile work environments for LGBTQ+ colleagues.
Other highlights include:
- Virtual workplace: Employers can be liable for conduct undertaken through messaging platforms, video conferencing, and social media, among other online and technological platforms.
- Pregnancy-related discrimination and harassment: The guidance emphasizes that sex-based harassment includes discrimination based on medical conditions related to pregnancy and childbirth, including abortion and contraception decisions.
- Third-party/indirect harassment: Conduct can constitute a hostile work environment even if it is not directed at the specific employee who feels harassed.
Outlook: The guidance is reflective of remote workplace realities as well as social attitudes and new judicial interpretations of Title VII. Employers should review their existing harassment policies to ensure they reflect the new guidance and update as needed to cover any gaps. The EEOC is expected to undertake a broad enforcement approach over the next two years, with this guidance serving as one launching point.
