The EEOC (Equal Employment Opportunity Commission) issued, on September 29, 2023, a Proposed Enforcement Guidance on Harassment in the Workplace, which is open for comment until November 1, 2023. When finalized, it will supersede the various manuals and guidance documents issued over the last three decades. The new Guidance provides an updated understanding of the legal standards for harassment claims, offers practical advice for employers on preventing workplace harassment, and qualifies as a quantum leap forward for LGTBQ+ antidiscrimination.
In the Guidance, the EEOC notes that federal law not only prohibits discrimination but also harassment if it creates a hostile work environment based on the employee’s sexual orientation or gender identity (generally defined as an individual’s innate sense of their own gender, which may or may not correspond with the sex assigned at birth). For example, harassment can include offensive or derogatory remarks about a person’s transgender status or gender transition.
The updated Guidance also broadens the types of harassment that can be based on sex, including harassment based on pregnancy, childbirth, and other “related medical conditions.” The broadened definition protects against harassment based on employees’ decisions pertaining to contraception, abortion, as well as lactation.
The “Promising Practices” section of the Proposed Guidance identifies “five core principles” that are believed necessary to prevent and address harassment:
- Committed Leadership;
- Demonstrated Accountability;
- Strong, Comprehensive policies;
- Trusted and Accessible Complaint Procedures; and
- Regular, Interactive Training Tailored Specifically to the Organization
The Guidance also addresses how social media postings and other online content can contribute to hostile work environments, even if such postings occur outside of the workplace and are not work-related. For example, communications conveyed using work-related systems, accounts, or platforms–including an employer’s email system, electronic bulletin board, instant message system, and video conferencing are all considered to be conducted within a “virtual work environment,” which can contribute to a hostile work environment.
In conclusion, understanding the new EEOC Guidelines is crucial for employers to foster a truly inclusive and diverse workforce. By adhering to these Guidelines, employers can ensure a fair and equal work environment for all individuals, regardless of their sexual orientation or gender identity. With a clear understanding of the key terms and concepts outlined by the EEOC, employers can navigate the complexities of LGBTQ+ discrimination and take proactive steps to prevent and address any instances of discrimination. By promoting diversity, inclusion, and acceptance, employers can create a workplace where every individual feels valued and respected, ultimately leading to increased productivity, innovation, and success for all.
To review the full Guidance, click here: https://www.eeoc.gov/proposed-enforcement-guidance-harassment-workplace
