EEOC Issues New Guidance on Harassment Hot Topics

On April 29, the Equal Employment Opportunity Commission issued new, modernized guidance on workplace harassment prevention and intervention. EEOC guidance materials such as these are not themselves the law. However, the EEOC will refer to and rely on these documents when investigating charges of discrimination, harassment and retaliation filed by employees. For that reason, employers can use them as a reference point when crafting and applying their own human resources policies and practices.

The EEOC guidance addresses several timely and sensitive issues, including gender identity and expression; religious objections to use of preferred pronouns; religious coercion; and abortion, contraception, lactation and other pregnancy-related matters. Indeed, the document also includes vivid example scenarios, based on real cases from this century, to illustrate its guidance.

Key Takeaways from the EEOC’s New Guidance for Private Employers

The EEOC often relies on its own guidance, which may differ from the decisions of district and circuit courts, when reviewing the alleged facts in a charge of harassment and issuing determinations.

According to the new guidance, the following behaviors are unlawful harassment requiring an employer to intervene:

• Repeated comments or questions about an employee’s appearance that does not conform to stereotypical binary male/female presentations.
• Intentional or repeated refusal to use an employee’s preferred pronouns (including at least they/them, she/her, he/him), regardless of whether their preference “matches” perceptions of their appearance.
• Denial of access to a bathroom, or any space segregated by sex, consistent with an employee’s own gender identity, again regardless of the individual’s appearance.
• Unwelcome comments about an employee’s choice of romantic partners.
• Encouraging or discouraging the use of contraceptives.
• Unfavorable treatment related to a decision to have, or not have, an abortion, now or in the past.
• Complaining of favoritism when an employee is accommodated for:
  • Lactation, morning sickness or other pregnancy-related conditions.
  • A disability or related condition.
• Touching or criticizing someone’s hair, which can signify race-based and/or gender-based harassment.
• Mocking someone’s disability, specifically including a stutter.
• Jokes about any of the above.

This is only a smattering of what is covered in the guidance document, which also explains that, to be considered unlawful, harassment and hostile work environment complaints need to be tied to a legally protected characteristic (meaning, race, color, religion, sex — including gender and gender identity or expression — national origin, age, disability or genetic information). Some of the scenarios are set in the virtual workplace, or even on social media outside of the workplace.

The guidance document also covers the EEOC’s view of what it takes for employers’ policies, complaint processes and trainings to be considered effective.

Practical Tips for Private Employers

Proactive steps employers can take to minimize the potential for, and viability of, claims concerning harassment and hostile work environments include:

• Verify the existence of an Equal Employment Opportunity policy and that it includes a reference to all legally protected characteristics.
• Verify the existence of a policy prohibiting unlawful harassment, discrimination and retaliation.
• Ensure the effectiveness of the anti-harassment policy, its complaint process and associate training.
• Provide training upon hire and regular refreshers to anyone whose role includes accepting and responding to a complaint of harassment, discrimination and retaliation.

For assistance evaluating and considering changes to your harassment policies and practices in light of this new EEOC guidance, contact a member of Robinson Bradshaw’s Employment & Labor Practice Group.