DC Employment Lawyers note the finalization of the EEOC’s long-awaited guidance on harassment, addressing pivotal updates in harassment law. These updates encompass significant legal shifts, notably the US Supreme Court’s landmark decision in Bostock v. Clayton Cty., which affirmed that Title VII’s prohibition on discrimination “because of sex” extends to discrimination based on sexual orientation and gender identity. Additionally, the guidance reflects the influence of movements like #MeToo and acknowledges the evolving landscape of remote work and online harassment.
As previously highlighted in our alerts, the EEOC initially proposed updated harassment guidance in 2017, which remained pending for years. However, under the current administration, led by Charlotte Burrows, the EEOC prioritized finalizing this publication. Burrows emphasized the non-partisan nature of civil rights, emphasizing its fundamental importance to all Americans. After receiving nearly 40,000 comments during the public feedback period, the EEOC published revised draft guidance in September 2023. This final guidance marks a significant milestone, arriving almost a quarter-century after the EEOC’s last guidance on the subject, superseding five prior documents issued between 1987 and 1999.
Key highlights from the finalized guidance include:
- Title VII’s expanded scope to cover intrusive inquiries regarding sexual orientation, gender identity, gender transition, or intimate body parts.
- Recognition of harassment against LGBTQ+ individuals, particularly transgender employees, as potential Title VII violations. This encompasses scenarios such as denial of bathroom access aligned with an individual’s gender identity or repeated misgendering.
- Broader definitions of sexual harassment, incorporating harassment related to pregnancy, childbirth, and associated medical conditions.
- Introduction of the concept of intersectional harassment, which occurs when harassment targets multiple protected characteristics simultaneously.
- Awareness of harassment in remote work settings, emphasizing that online communication platforms can also facilitate harassment.
While the guidance doesn’t carry the force of law, it serves as a valuable resource for the EEOC, other adjudicating agencies, and courts handling harassment claims. The 77 “Examples” included within offer practical insights for practitioners and employers, aiding in the interpretation and application of anti-harassment principles. As such, staying abreast of issued guidance and updating policies accordingly remains a best practice for employers.