EEOC Publishes New Harassment Guidance Addressing Remote Work and LGBTQ+ Harassment

On October 2, 2023, the Equal Employment Opportunity Commission (“EEOC”) published proposed guidance that clarifies and updates the legal standards and employer liability applicable to harassment claims under federal law, including Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. The guidance remains open for public comment until November 1, 2023. If the guidance is finalized, it will be the first guidance on harassment claims that the EEOC has issued since 1999.

The EEOC last released a proposed update to its guidance on sexual harassment for public comment in 2017. However, the guidance was never finalized by the Trump administration. When finalized, this new proposed guidance will supersede five prior guidance documents: Compliance Manual Section 615: Harassment (1987); Policy Guidance on Current Issues of Sexual Harassment (1990); Policy Guidance on Employer Liability under Title VII for Sexual Favoritism (1990); Enforcement Guidance on Harris v. Forklift Sys., Inc. (1994); and Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999).

The latest proposed update expands and further clarifies existing guidance related to the statutes enforced by the EEOC, in part by adding several new illustrative examples. The guidance also addresses recent updates in the legal landscape of harassment claims, such as the U.S. Supreme Court’s decision in Bostock v. Clayton County., 140 S. Ct. 1731 (2020), in which the court held that Title VII’s protections extend to discrimination based on a person’s gender or sexual orientation. The guidance accordingly adds gender identity and sexual orientation as categories of protected characteristics. It also provides that harassment includes using gender identity epithets, intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (misgendering), harassment because an individual does not present in a manner that would stereotypically be associated with that person’s gender, and denying access to facilities consistent with gender identity.

The guidance also addresses other developments related to harassment claims by acknowledging the impact of the #MeToo movement, addressing circumstances that have arisen in increasingly pervasive remote work environments, and addressing harassment based on reproductive decisions. The guidance specifies that conduct within a virtual work environment can contribute to a hostile work environment. This can include, for instance, sexist comments made during a video meeting, racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting, or sexual comments made during a video meeting about a bed being near an employee in the video image. The guidance also adds pregnancy, childbirth or related medical conditions, such as lactation, as sex-based protected characteristics. Reproductive decisions, such as decisions about contraception and abortion, are also protected from harassment.

Employers should review the proposed guidance and their current policies, including, among others, those related to harassment, video meetings, lactation accommodations, and LGBTQ+ individuals to ensure that those policies are and will be up to date when the guidance is finalized. Employers may also consider training employees regarding the new aspects of this guidance.