For the first time in 25 years, the U.S. Equal Employment Opportunity Commission updated its guidance on what constitutes harassment to make it more relevant to today’s workplaces.
To avoid becoming the subject of an EEOC enforcement action, here’s a basic summary of some of the guidelines’ new understandings of unlawful harassment.
Perhaps the biggest change involves harassment based on sexual orientation and gender identity. In 2020, the U.S. Supreme Court ruled in the landmark case of Bostock v. Clayton County, Georgia that sex discrimination includes these categories. In response, the EEOC has provided examples of workplace conduct that may amount to harassment in this context. Examples include “outing” an LGBTQ+ person, intentionally “misgendering” employees by using different pronouns than what they request and denying employees access to the rest room or other similar facility for the gender they identify with.
Gender-based harassment also now explicitly includes harassment based on reproduction. Among other things, mistreating an employee for their pregnancy, for their need to nurse or pump breast milk or for pregnancy-related conditions might fall into this category.
The EEOC has also clarified that race harassment need not directly reference a person’s race. It could also include harassment based on characteristics linked to race, such as a name, an accent, a hairstyle, hair texture or style of dress. Additionally, the EEOC has specified that harassment based on color – such as pigmentation, complexion or skin tone – is actionable as race harassment.
Meanwhile, the new guidance clarifies that being discriminated against or harassed for having no religion or being an atheist is considered religious discrimination. Similarly, it clarifies that a worker’s or an employer’s sincerely held religious beliefs will not shield them from the consequences of expressing their beliefs in a way that violates other employees’ rights. An example of this could be a worker who refuses to use a transgender or nonbinary co-worker’s chosen pronouns on the grounds that it violates their religious beliefs.
If they’re disciplined for gender harassment, they can’t raise “religious liberty” as a defense. The guidance further clarifies that harassment in a virtual environment is actionable as well. For example, an employee having an offensive image like a swastika or confederate flag visible in the background while in a Zoom meeting could potentially lead to a claim. You should review your existing policies and make any changes needed to get them in compliance with the updated guidance.
You also need to ensure your policies comply with your state’s antidiscrimination and anti-harassment laws. Additionally, training your workforce will help ensure that harassment is less likely to occur, and the fact that you’ve done such training may help defeat allegations that you weren’t doing enough to prevent issues from arising.
A good employment attorney can help you review your policies and update them while ensuring that your workforce is properly trained.