It has been about a quarter century since the EEOC significantly revised their guidance documents regarding illegal harassment in the workplace. As the world has evolved in that time, the agency has added guidance documents for specific types of harassment or specific scenarios, resulting in a small constellation of related, but somewhat disconnected guidance for employers, making it difficult for them to be sure they are following the “right” guidance.
The EEOC has addressed that by issuing a new, “consolidated” guidance document that replaces several individual guidance documents and brings everything under that umbrella topic together in one place where context is easier to discern. And they have taken the opportunity to update and add to their guidance based on significant developments in the legal landscape over the past couple of decades, notably the Supreme Court’s decision in Bostock addressing LGBTQ+ protections under Title VII.
The revised guidance is getting a lot of attention over the addition of examples of harassment based on sexual orientation and gender identity. For example, repeatedly and intentionally “misgendering” an employee (referring to someone who identifies as male as “she,” for example) can be a form of illegal harassment.
As tends to be the case, the EEOC’s examples are not often particularly nuanced. Misgendering is one of about a half dozen problematic behaviors described in this single example, making it clear that in totality the situation constitutes illegal behavior. The guidance does not directly address if or under what circumstances misgendering alone can rise to the level of a violation.
Still, the new examples and topics are useful for employers to apply EEOC standards to more modern situations. The brightest example of that is probably their guidance regarding harassment in a “virtual work environment.” Twenty-five years ago, very few employees engaged in a virtual environment, but today that is increasingly common, and can bring with it new forms of harassment.
Another is the EEOC addressing “conduct on social media platform outside workplace.” Astute readers will likely recognize the application of existing guidance regarding “non-work-related conduct that impacts the workplace,” just in the new context of online social media.
We are still combing through the almost 190-page document for truly “new” guidance, but so far has not found much of note. The document appears to be mainly a consolidation with some updated examples and scenarios.
If you have questions about the EEOC’s updated guidance, feel free to reach out to us at BCGi@Biddle.com.
