Earlier today, for the first time in over 25 years, the federal Equal Employment Opportunity Commission (EEOC) updated its enforcement guidance on unlawful workplace harassment. Though not legally binding, this new guidance makes clear how the EEOC will enforce federal anti-harassment laws under the current administration.
The EEOC’s new guidance provides clarity — and a new enforcement focus — in four key areas:
Remote work. Today’s guidance makes clear that workplace harassment can occur virtually. That is, harassment that occurs by email, text message, videoconference, or other online technology, can still be considered “workplace harassment” that violates federal law. In addition, harassing posts on one employee’s personal social media posts can also violate federal law if they fundamentally alter the terms and conditions of employment for another employee.
LGBTQ and transgender rights. Today’s guidance makes clear that harassment against gay, lesbian, and/or transgender employees is considered unlawful “sex” harassment under federal law. As examples, the EEOC explained that (1) denying an employee to a restroom consistent with his or her gender identity, (2) intentionally and repeatedly mis-gendering an individual, and (3) harassing an individual because they do not present consistent with their biological sex would all be considered unlawful sex harassment under federal law.
Pregnancy and related conditions. Today’s guidance makes clear that harassment on the basis of pregnancy, childbirth and “other related conditions” constitutes unlawful “sex” harassment under federal law. As examples, the EEOC explained that employees are protected under federal law from harassment because of their decisions related to lactation, their use (or non-use) of contraception, and their decision to have (or not to have) an abortion.
Religious expression. Today’s guidance makes clear that employers have dual duties under federal law: (1) the duty to accommodate an employee’s sincerely held religious beliefs, on the one hand, and (2) the duty to ensure that all employees are protected from religiously motivated harassment. As an example, the EEOC says that a religious employee attempts to convince another employee of the correctness of his religious belief, and if the other employee objects to the discussion, the religious employee could be engaging in unlawful religious harassment if he persists in trying to convince the other employee.
We recommend that all employers review the EEOC’s new “Enforcement Guidance on Harassment in the Workplace” (available here) and ensure that their workplace policies are consistent with this new guidance.
