For the first time in 24 years, the EEOC has updated its guidance on Workplace Harassment. The guidance, which issued on April 29, 2024, provides new clarifications on duties to protect LGBTQIA+ workers, handling virtual harassment, and newly beefed-up protections against harassment based on pregnancy and religious expression.
In 2020, in Bostock v. Clayton County, the US Supreme Court concluded that Title IX prohibitions against gender discrimination include protections against discrimination on the basis of a worker’s sexual orientation or gender identity. The new guidance clarifies that this also means protections against harassment. New examples of illegal harassment include, among other things, intentionally and repeatedly using the wrong pronouns or name, “outing” a person without their consent, requiring an employee to wear clothes inconsistent with their gender identity, and denying use of a particular bathroom based on gender.
Harassment on the basis of pregnancy is also gender discrimination, and includes denial of reasonable lactation time, giving someone a hard time about contraception or abortion, or being nasty to or about a person because they are pregnant.
Employers have always been required to accommodate sincerely-held religious beliefs; the updated guidance clarifies that some amount of coworker proselytizing is acceptable, but if an employee asks not to be part of the discussion, a failure to honor that request is harassment.
The new guidance also specifies that harassment that occurs via email, social media, chat, videoconference, or other online technology is still harassment.
About 20 states’ AGs have sued to enjoin the guidance, mostly because they are freaking out about the gender identity protections. So far the guidance remains in effect…but stay tuned.
Wondering if this is still a thing? By the time you read this blog post, the whole landscape may have changed. So always, always, always talk to a workplace lawyer in your jurisdiction to determine what applies to your particular situation.
