The Modern Workplace

On Friday, September 29, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) posted for public inspection its proposed “Enforcement Guidance on Harassment in the Workplace.”  The EEOC previously released proposed guidance on workplace harassment for public comment back in 2017, but the guidance was not finalized.  The updated proposed guidance posted last week reflects recent changes in the law and recent trends, including:

• The U.S. Supreme Court’s decision in Bostock v. Clayton County, in which the Court held that Title VII prohibits employment discrimination based on an individual’s sexual orientation and gender identity;
• The #MeToo movement; and
• Virtual or online harassment.

For example, the proposed guidance specifically states that sex-based harassment includes harassment on the basis of sexual orientation and gender identity, including how that identity is expressed.  The proposed guidance notes that examples of discrimination based on sexual orientation and gender identity include, among others, “intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.”  The proposed guidance further states that sex-based harassment includes harassment on the basis of pregnancy, childbirth, or related medical conditions (which can include harassment based on a woman’s reproductive decisions, such as decisions about contraception or abortion).  Additionally, likely anticipating potential conflicts between religious accommodations and an employer’s anti-harassment obligations, the proposed guidance notes that employers have a duty to protect workers against religiously motivated harassment and are not required to accommodate religious expression that creates, or reasonably threatens to create, a hostile work environment. 

In addition to sex, the proposed guidance also covers harassment on the basis of race and color, national origin, religion, age, disability, and genetic information. 

As to remote work and potential virtual or online harassment, the proposed guidance notes that conduct within a virtual work environment can contribute to a hostile work environment.  Examples of such conduct provided in the guidance include sexist comments made during a video meeting or racist imagery that is visible in an employee’s workspace during a video meeting.   

The guidance is intended to consolidate and supersede multiple earlier EEOC guidance documents when final.  The public is invited to submit comments on the proposed guidance until November 1, 2023.