EEOC Publishes Long-Awaited Final Guidance on Workplace Harassment

On April 29, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) issued the final version of new workplace harassment guidance for employers, formally updating the EEOC’s position on the legal standards and employer liability under federal antidiscrimination laws for the first time in more than two decades.

Quick Hits

  • The EEOC issued a final version of new guidance for employers clarifying its positions on the applications of federal laws prohibiting harassment and retaliation.
  • The new guidance is the first update to the EEOC’s workplace harassment guidance since 1999 and incorporates several new developments in the law and modern workforces.
  • Key to the new guidance is that it recognizes unlawful harassment against LGBTQ+ individuals and addresses workplace protections for “pregnancy, childbirth, or related medical conditions,” including “lactation.”
  • The new guidance took immediate effect upon issuance.

The new guidance, “Enforcement Guidance on Harassment in the Workplace,” clarifies the EEOC’s position on several key issues following its receipt of nearly 40,000 comments in response to its proposed guidance published on October 2, 2023.

“The EEOC’s updated guidance on harassment is a comprehensive resource that brings together best practices for preventing and remedying harassment and clarifies recent developments in the law,” EEOC Chair Charlotte Burrows said in a statement released with the new guidance.

In that regard, the final guidance aligns with the Supreme Court of the United States’ 2020 decision in Bostock v. Clayton County, Georgia—wherein the prohibition under Title VII of the Civil Rights Act of 1964 against gender discrimination was held to include claims predicated on sexual orientation and gender identification—and recognizes potentially unlawful workplace harassment against LGBTQ+ individuals. The final guidance also addresses another key area of focus, that is, workplace protections for “pregnancy, childbirth, or related medical conditions,” including “lactation” in accordance with the Pregnant Workers Fairness Act (PWFA) and Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), and the EEOC’s final guidance on the PWFA issued on April 15, 2024.

While claims of harassment represented more than a third of all discrimination charges filed with the EEOC between fiscal years 2016 and 2023, the Commission has not updated its guidance on harassment since 1999. The final guidance consolidates and replaces the EEOC’s five guidance documents issued from 1987 through 1999.

Significant for employers, the final guidance provides more than seventy hypothetical examples of potential unlawful harassment, including examples reflective of today’s modern workforce with both hybrid and remote workers and widespread use of electronic communication and social media.

Covered Harassment

The EEOC made several key updates to what it considers covered harassment under Title VII and other federal antidiscrimination laws.

Race and Color

The new guidance expands the EEOC’s explanation on potential harassment based on “color” under Title VII, separating it out into its own section that was not included in the proposed guidance. The guidance states that while discrimination based on color is “sometimes related to harassment based on race or national origin, color-based harassment due to an individual’s pigmentation, complexion, or skin shade or tone is independently covered by Title VII.”

The guidance provides an example of potential color-based harassment where a supervisor harasses Black employees with “darker complexions” and not Black employees with “lighter skin tones,” even though they are all of the same race or national origin.

Pregnancy, Childbirth, or Related Medical Conditions

The guidance states that harassment based on pregnancy, childbirth, or related medical conditions “can include issues such as lactation; using or not using contraception; or deciding to have, or not to have, an abortion,” if that harassment “is linked to a targeted individual’s sex.” The new guidance adds multiple hypothetical examples of such harassment not included in the proposed guidance, including a situation where employees make negative comments about a pregnant employee who is allowed to “telework up to three days per week and utilize flexible scheduling” as an accommodation for “pregnancy-related morning sickness.” Another example highlighted a situation where negative comments are directed toward a female worker who expresses milk in the lactation room at work and other inappropriate behavior, namely a male worker knocking on the door of the lactation room and feigning intent to enter the room.

Sexual Orientation and Gender Identity

The new guidance explains the EEOC’s view that discrimination based on sexual orientation or gender identity is a form of unlawful sex-based discrimination under Title VII, including epithets, physical assault, “outing” (meaning disclosing an individual’s sexual orientation or gender identity without permission), or other harassing conduct toward individuals because they do “not present in a manner that would stereotypically be associated with that person’s sex.”

Further, the guidance identifies as potential harassment the “repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.” Importantly, the final guidance requires some intentional or knowing behavior, that is “repeated and intentional” misgendering based on an individual’s “known” gender identity. (Emphasis added.)

Genetic Information

The new guidance further clarifies the EEOC’s understanding of unlawful harassment under the Genetic Information Nondiscrimination Act (GINA) as applying to “harassment based on an individual’s, or an individual’s family member’s, genetic test or on the basis of an individual’s family medical history.” For instance, the guidance states that such harassment could include harassing an employee “because the employee’s mother recently experienced a severe case of norovirus, which resulted in overnight hospitalization.”

Retaliatory Harassment

The final guidance includes a new section that addresses the concept of “retaliatory harassment.” The guidance clarifies the EEOC’s position that “retaliatory harassing conduct” may still be challenged as unlawful retaliation “even if it is not sufficiently severe or pervasive to alter the terms and conditions of employment by creating a hostile work environment.” The EEOC explained that the legal standards for hostile work environment and retaliation are different as the anti-retaliation provisions proscribe a broader range of behaviors, namely, “anything that might deter a reasonable person from engaging in protected activity.”

Intraclass and Intersectional Harassment

The guidance includes examples of “intraclass” harassment where the harasser is in the same protected category as the individual being harassed. One hypothetical involves a fifty-two-year-old supervisor making derogatory comments toward a sixty-five-year-old employee as an example of harassment based on age, even though both individuals are over the age of forty. “Intersectional” harassment refers to situations where individuals are targeted based on their membership in more than one protected category. In one example, the hypothetical raises a situation where a male manager made comments to a female worker about her having a “hot flash” and being menopausal. The EEOC explained that such targeting based on “stereotypes about older women is covered as both age and sex discrimination.”

Reporting Procedures, Complaint Process, and Training

The proposed guidance outlined the “minimum” features of an effective anti-harassment policy, the “minimum” features for an effective complaint process, and the “minimum” features for effective anti-harassment training. The final guidance eliminates the “minimum” language, but the features of each are substantively the same otherwise.

As it concerns remedial measures, the Commission removed language from the proposed guidance that seemingly recognized the “fewer options” available to employers when faced with instances of harassment perpetrated by nonemployees, harassment toward employees working at client locations as is common for temporary staffing agencies, or harassment arising from off-duty conduct. In its place, the final guidance simply provides that employers have an “arsenal of incentives and sanctions” available to them to address harassment, but those options “may vary depending on who engages in the conduct and where it occurs, among other considerations.”

Next Steps

While the final guidance is likely to face legal challenges in the courts, employers may want to review their workplace policies and practices, particularly in light of potential liability for discrimination or harassment against LGBTQ+ employees. Additionally, employers may want to note differing state or local laws and state or local agency guidance that differ from Title VII and other federal laws enforced by the EEOC.

In addition to the new guidance, the EEOC published a “Summary of Key Provisions” document and a fact sheet for small businesses, with more information for employers.

The New OFCCP Sexual Orientation And Gender Identity Protections Are Now In Effect

Proskauer Rose LLP, Law Firm

Executive Order (“EO”) 11246, as amended by EO 13762, officially went into effect, representing the first time in the federal sector that sexual orientation and gender identity have been expressly protected. On July 21, 2014, President Obama issued EO 13762, which amended EO 11246 to prohibit federal contractors from discriminating against employees on the basis of sexual orientation or gender identity. These additional protections are being incorporated into the Federal Acquisition Regulations (“FAR”), which will become effective tomorrow, April 10, 2015.

In order to educate the public on these new protections, the Office of Federal Contractor Compliance Programs (“OFCCP”) is conducting a series of webinars regarding the new sexual orientation and gender identity protections. Thus far, the webinars have focused on the obligations of federal contractors and the procedures available to claimants for filing a complaint under the new protections. We have summarized below key points from the webinar:

To Whom Does This Apply?

These new protections apply to any federal contractor, subcontractor, or government funded construction contractor that enters into or renews a federal contract or contracts valued at $10,000 or more per year. These new protections only apply to contracts entered into or renewed on or after April 8, 2015. These protections do not apply to organizations receiving grants from the federal government.

Administrative Changes Required By Employers

Under the new protections, employers must update the EEO language on their job advertisements, their EEO policies, and their “EEO is the Law” poster. The poster need not be updated until the OFCCP releases a supplement. The OFCCP has not yet announced when this supplement will be released.

With respect to the EEO language, the OFCCP has said that employers can simply say “Equal Employment Opportunity” on their job postings. However, if the employer chooses to list out the protected groups, it must list “sexual orientation” and “gender identity.” The OFCCP does not endorse the use of the acronym “LGBT,” as this is not representative of the entire protected class.

Dual Filing With The EEOC

The OFCCP clarified that any complaints alleging sexual orientation or gender identity discrimination are considered “dual-filed” with the EEOC. This means that the OFCCP will stand in the shoes of the EEOC when investigating the Title VII component of the complaint. While Title VII does not overtly protect against gender identity and sexual orientation discrimination, the EEOC has taken the position that these classifications are protected under Title VII and will pursue cases on behalf of these individuals.

As a consequence of the dual-filing process, if the OFCCP does not find cause or does not dispose of a case within 180 days, an employee can request a Notice of Right to Sue from the OFCCP to bring a private cause of action against the employer. This is significant as EO 11246 does not provide for a private cause of action. The OFCCP clarified, however, that it does not intend to pursue the compensatory and punitive damages available under Title VII (which are not available under the EO).

Religious Affiliated Contractors

In one of the webinars, the OFCCP clarified that all federal contractors, including religiously affiliated federal contractors, are required to comply with the new protections. This means that even those contractors who have been granted certain religious exemptions under EO 11246 may not discriminate based upon sexual orientation or gender identity.

Restroom Access Policies

The OFCCP clarified how employers must approach restroom access under the new protections. OFCCP explained that employers must allow employees to use restrooms based upon their gender identity. This means that if an employee was identified as a male at birth, but identifies as a female, the employer must permit that employee to use the female restroom if the employee desires to do so.

Benefits

The new protections provide that the same benefits must be provided to same-sex spouses as non-same-sex spouses. However, employers are not required to provide the same benefits to couples in civil unions or domestic partnerships as long as the denial of benefits is not based on discrimination. Consequently, if a contractor provides heterosexual domestic partners with benefits, it must provide homosexual domestic partners with the same benefits.

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Executive Order Extends Workplace Anti-Discrimination Protections to LGBT Workers of Federal Contractors

Jackson Lewis Law firm

Though it took longer than expected, President Barack Obama has signed an Executive Order extending protections against workplace discrimination to members of the lesbian, gay, bisexual, and transgender (“LGBT”) community. Signed July 21, 2014, the Executive Order prohibits discrimination by federal contractors on the basis of sexual orientation or gender identity, adding to the list of protected categories. It does not contain any exemptions for religiously affiliated federal contractors, as some had hoped. Religiously affiliated federal contractors still may favor individuals of a particular religion when making employment decisions.

The President directed the Secretary of Labor to prepare regulations within 90 days (by October 19, 2014) implementing the new requirements as they relate to federal contractors under Executive Order 11246, which requires covered government contractors and subcontractors to undertake affirmative action to ensure that equal employment opportunity is afforded in all aspects of their employment processes. Executive Order 11246 is enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP).

The Executive Order will apply to federal contracts entered into on or after the effective date of the forthcoming regulations. OFCCP likely will be charged with enforcement authority.

We recommend that employers who will be impacted by this Executive Order review their equal employment opportunity and harassment policies for compliance with the Executive Order. For example, employers who are government contractors should add both sexual orientation and gender identity as protected categories under these policies and ensure that mechanisms are put in place to ensure that discrimination is not tolerated against LGBT employees.

We will provide additional information and insights into the proposed regulations when they are available.

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