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EEOC finalizes harassment guidance, addressing remote work, gender identity

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The U.S. Equal Employment Opportunity Commission finalized enforcement guidance on harassment in the workplace Monday, updating guidelines in light of important changes in recent years, including the Supreme Court’s 2020 Bostock v. Clayton County decision and widespread remote work.

The guidance incorporates the Bostock decision through its inclusion of definitions of harassment based on sexual orientation and gender identity, noting that harassment can include “outing” individuals, misgendering, pestering related to a gender-nonconforming appearance and the denial of access to a bathroom or other sex-segregated facility consistent with an individual’s gender identity. 

The guidance also touches on harassment related to pregnancy, childbirth and related medical conditions — including lactation, using (or not using) contraception and choosing to have (or not have) an abortion — as well as genetic information. To illustrate how the latter might apply, the agency used a hypothetical example of a worker who takes a DNA test and discovers she is at higher risk for developing Hypertrichosis, a condition known as Werewolf Syndrome, resulting in co-workers referring to her as “the werewoman.”

In addition to highlighting identity characteristics that can qualify harassment claims, EEOC laid out the ways harassment in the modern work environment can look different than when guidance was last updated in 1999

Among such conduct that could be considered harassment in a virtual environment, EEOC highlighted “sexist comments made during a video meeting, ageist or ableist comments typed in a group chat, racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting, or sexual comments made during a video meeting about a bed being near an employee in the video image.”

EEOC responds to comments

EEOC first proposed the guidance last October, more than half a decade after indicating plans were in the works. It received roughly 38,000 comments on the proposal until early November and said it “carefully considered” those comments in developing its final guidance. 

EEOC largely kept the guidance structure proposed in October, laying out the characteristics protected by EEO laws and establishing when causation can be determined; exploring when harassment affects a term, condition or privilege of employment; and examining employer liability.

In response to comments, EEOC made some changes to the final guidance, including adding a wide array of harassment examples — more than 70 — and providing a clearer illustration of how a hostile work environment can be determined based on the totality of the circumstances.

The agency also addressed some concerns and critiques from commenters, including that the proposed guidance would infringe on free speech or religious rights by restricting speech regarding abortion or requiring individuals to use pronouns that conflict with their religious beliefs. EEOC added clarifying language to several sections to help employers and individuals navigate these issues, it said.

“When the Commission is presented with individualized facts in an EEOC administrative harassment charge, the agency works with great care to analyze the interaction of Title VII harassment law and the rights to free speech and free exercise of religion,” the agency wrote.  

Some commenters took issue with EEOC’s contention that employers prohibiting workers from using sex-segregated bathrooms consistent with their gender identity constituted harassment, arguing it exceeded the authority provided by Bostock. In response, EEOC noted that while Bostock did not address bathrooms and other sex-segregated facilities, the agency “must sometimes take a position on whether an alleged type of conduct violates Title VII even in the absence of binding Supreme Court precedent.”

To help employers navigate the new guidance, EEOC released a summary of key provisions and a fact sheet for small businesses. 

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