More than you may think: What employers need to know about the EEOC’s latest guidance on harassment in the workplace

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More than you may think: What employers need to know about the EEOC’s latest guidance on harassment in the workplace

5/2/24

On Monday, April 29, 2024, the Equal Opportunity Employment Commission (“EEOC”) published the updated Enforcement Guidance on Harassment in the Workplace following the most recent revisions since 1987 and 1999. Importantly, the new guidance addresses issues such as misgendering and denial of bathroom access head-on.

This is the first time that the EEOC has updated its guidance since the landmark U.S. Supreme Court decision in Bostock v. Clayton County, Georgia, 590 U.S. 644, 140 S.Ct. 1731, 207 L.Ed.2d 218 (2020). The decision in Bostock expanded the interpretation of Title VII to include sexual orientation and gender identity as part of sex under the statute. The EEOC’s new guidance incorporates Bostock and defines workplace harassment based on sex to specifically include harassing behavior based on sexual orientation, gender identity, and the expression of gender identity.

The EEOC highlighted that claims under Title VII can be triggered by “asking intrusive questions about a person’s sexual orientation, gender identity, gender transition, or intimate body parts.” The agency offers several examples of harassing behavior, such as: forcibly “outing” an employee, repeatedly misgendering an employee, or denying an employee access to a bathroom or workplace facility consistent with their gender identity. Harassing behavior may trigger protections under an intersection of multiple protected characteristics. Nonetheless, case-specific analysis is necessary to determine if behavior rises to the level of harassment in violation of federal law.

Sexual orientation and gender identity continue to be at the forefront of developments in employment law. Employers should familiarize themselves with these updated guidelines, proactively implement changes to company policies as necessary, and appropriately educate employees to foster a safe work environment that complies with these developing legal standards. An employer can be held liable for failure to prevent workplace harassment under Title VII, and should quickly end harassing behavior once they become aware of it. This guidance from the EEOC will assist employers with navigating new liability concerns in the evolving landscape of employment issues.

For more information, please contact Kyle M. Ridgeway at kyle.ridgeway@fmglaw.com or your local FMG attorney.

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