EEOC Issues Guidance on Federal Prohibitions on Harassment in the Workplace

CATEGORY: Special Bulletins
CLIENT TYPE: Nonprofit, Private Education, Public Education, Public Employers, Public Safety
PUBLICATION: LCW Special Bulletin
DATE: May 01, 2024

On April 29, 2024, the U.S. Equal Employment Opportunity Commission (“EEOC”) finalized its long-awaited Enforcement Guidance on Harassment in the Workplace. The new guidance consolidates and supersedes several earlier versions of federal guidance on this subject and serves as a single unified source regarding the EEOC’s enforcement of federal laws intended to protect employees from workplace harassment.

The new guidance addresses many significant legal developments pertaining to workplace harassment since the last formal update to EEOC guidance on this subject in 1999. While many of the changes in the federal guidance align with obligations already in place under California law, the following changes to EEOC guidance are nevertheless note-worthy and in certain cases now provide employees greater protections than under state law:

  • Gender identity and sexual orientation are added as categories of protected characteristics. The EEOC’s new guidance states that sex-based harassment includes harassment based on sexual orientation and gender identity, including how an individual expresses that identity, which aligns with the U.S. Supreme Court’s recent decision in Bostock v. Clayton County. The EEOC’s guidance also reflects several more recent decisions, most of them post-Bostock, that further clarify what is considered sex-based discrimination under Title VII. As a result, harassing conduct based on sexual orientation or gender identity now includes using epithets regarding sexual orientation or gender identity, repeated and intentional use of a name or pronoun that is inconsistent with the individual’s gender identity (i.e., misgendering), and denying an individual access to a bathroom or other sex-segregated facility consistent with their gender identity. While prohibitions against sexual orientation and gender identity harassment are now incorporated into the federal regulations, similar requirements are already in place in California under the state’s Fair Employment and Housing Act (“FEHA”). Employers in the state that are covered by FEHA are already obligated to prevent harassment based on gender identity and sexual orientation.
  • The definition of sex-based harassment now includes pregnancy, childbirth, or related medical conditions. Under the EEOC guidance, employees are now protected against employment-related harassment and discrimination related to the employee’s pregnancy, including but not limited to lactation, contraceptive choices, and the decision to have or not have an abortion. For example, employers may not discharge employees from their jobs because they use contraceptives or decision to have an abortion. The EEOC guidance provides that, under Title VII, an employer’s health insurance must cover contraceptives, but is not required to pay for coverage of abortion except where the life of the mother would be endangered. Again, regulations under the FEHA already address and prohibit this type of discrimination in California.
  • The EEOC’s prohibition against harassment based on race, national origin, religion, age, and disability also includes harassment based on stereotypes of individuals belonging to those groups. The EEOC guidance clarifies that federal equal employment laws protect employees from harassment based on stereotypes related to their race, national origin, religion, age (if older than 40 years of age), and disability status. While the FEHA regulations only explicitly prohibit “stereotyping” based on sex and age, the new EEOC guidance specifies that stereotyping is impermissible for individuals in additional protected classifications. Therefore, employers should take note that, while the stereotyping based on these protected classifications would likely constitute harassment under the FEHA, the EEOC guidance specifically prohibits the use of stereotypes based on race, national origin, religion, and disability as a matter of federal anti-harassment law.
  • Conduct within a virtual work environment may contribute to a hostile work environment. The new EEOC guidance clarifies that if discriminatory conduct is conveyed using work-related communications systems, accounts, devices, or platforms (e.g., via a remote/telework connection), such conduct may violate Title VII. For instance, if an employee makes sexist comments or displays racist imagery during a videoconference call or meeting that may be considered conduct that contributes to a hostile work environment. Under state law, there is currently no guidance that specifically states that conduct in a virtual work environment may create a hostile work environment. Consequently, employers should clarify this aspect of current and operative harassment and telework policies to expressly prohibit employees from engaging in such conduct while working remotely.
  • Employers are not required to accommodate an employee’s religious expression that creates or “reasonably threatens to create” a hostile work environment. Under Title VII, employers must accommodate an employee’s sincerely held religious beliefs.  Employers must also protect employees against religiously motivated harassment by other employees. The EEOC guidance reconciles potential conflicts in these obligations, clarifying that employers need not accommodate an employee’s sincerely held religious practice if doing so would create or reasonably threatens to create a hostile work environment for another employee. For instance, the guidance cites an example where an employer was not required to accommodate an employee by allowing the employee to distribute pamphlets that were offensive to coworkers, including material that negatively depicted other religions. Under existing state law, the FEHA imposes a similar restriction.
  • The new guidance includes a list of features that an employer’s anti-harassment policy should have in place in order to be effective. The EEOC guidance also provides a list of requirements in order for an employer to implement an effective harassment complaint procedure and effective anti-harassment training. Under the FEHA, California law already imposes similar requirements on employers who must implement a process for addressing employee complaints about harassment, discrimination and retaliation and provide training on the prevention of workplace harassment, discrimination and retaliation to employees.

As explained above, some of the guidance provided by the EEOC already exists under and is required by state law. However, there are other areas where the EEOC guidance expands on or clarifies employer obligations in ways that differ from or exceed state requirements on such subjects.

With this in mind, employers should review their existing anti-harassment policies in order to determine whether such policies account for and align with the updates to federal law. Religious nonprofits should be aware that there are certain exceptions to Title VII that may apply to them. If you have any questions about whether an exception to Title VII applies to your organization or about updating your policies in order to comply with the new guidance from the EEOC, LCW attorneys are familiar with the guidance and ready to assist you update your policies.

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