EEOC-Proposed Workplace Harassment Guidance Broadens Definition of ‘Harassment’

The Equal Employment Opportunity Commission (EEOC) released earlier this month updated proposed guidance on harassment in the workplace, largely based on developments in applicable case law and societal trends coming out of the #MeToo movement and the rise of social media.

The proposed guidance provides that under Title VII, employees are protected against discrimination based on sexual orientation and gender identity. Examples of this may include, misgendering employees by repeated or intentional use of a name or pronoun inconsistent with the individual’s gender identity or denying access to bathrooms or sex-segregated facilities that are consistent with the individual’s gender identity. The proposed guidance also prohibits harassment based on pregnancy, childbirth, medical conditions, as well as harassment stemming from employee decisions on contraception, abortion, and breastfeeding.

Importantly, the updated guidance provides that “stereotyping” can also constitute harassment. Specifically, “[h]arassment is based on a protected characteristic if it is based on social or cultural expectations, be they positive, negative, or neutral, regarding how persons of a particular protected group usually act or appear.”

The proposed guidance also makes clear that harassment can take place in a non-work-related context, entirely outside of work channels, such as through personal social media accounts, and still constitute workplace harassment if it contributes to or results in a hostile work environment.

The proposed guidance is currently open for public input until Nov. 1, but we do not know yet when it will go into effect. However, considering these likely changes, employers can review their existing harassment policies to ensure that they are clearly stated, widely accessible and disseminated to all employees. Employers also can check to ensure they have multiple avenues for employees to report harassment and that their policies otherwise comport with the updated guidance. As the proposed guidance suggests, because some employees might not be comfortable reporting harassment in all instances, employers can also consider taking affirmative steps, such as conducting climate surveys among employees.

As always, employers are encouraged to consult with legal counsel to develop appropriate safeguards to prevent and respond to instances of harassment in the workplace. If you have questions regarding harassment in the workplace, please contact the attorneys at Pechman Law Group at 212-583-9500.


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