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The U.S. Equal Employment Opportunity Commission (EEOC) released updated enforcement guidance this week that significantly expands protections for LGBTQ workers and provides new standards for what constitutes a hostile work environment. The guidance, which replaces previous advisories issued over 25 years ago, incorporates recent Supreme Court rulings and addresses emerging issues related to gender identity, sexual orientation, and pregnancy.
Harassment Based on Sexual Orientation and Gender Identity
In one of the most impactful changes, the EEOC makes clear that workplace harassment and discrimination based on an individual's sexual orientation or gender identity is prohibited under Title VII's ban on sex discrimination. This aligns with the Supreme Court's landmark 2020 decision in Bostock v. Clayton County.
The guidance states that using the wrong pronouns or name for a transgender employee, denying them access to bathrooms matching their gender identity, or outing their LGBTQ status without permission all may constitute unlawful harassment. Offensive jokes, slurs, sexual coercion, and physical threats targeting LGBTQ workers are also illegal.
With more employees openly identifying as LGBTQ, especially younger generations, this update provides important and overdue protections. It puts employers on notice that they must swiftly address anti-LGBTQ abuse and cannot argue it falls outside the scope of sex discrimination laws.
Discrimination Related to Pregnancy and Abortion
The EEOC also weighs in on the volatile issue of abortion rights, clarifying that employment decisions based on a worker's reproductive health choices can be a form of illegal pregnancy discrimination. This includes firing, demoting or harassing an employee for having an abortion or using contraception.
With abortion now banned or severely restricted in over a dozen states in the wake of Roe v. Wade being overturned, and some Republican lawmakers looking to restrict contraception access as well, the EEOC is staking out a strong position that employers cannot discriminate against workers for these personal healthcare decisions. However, religious organizations are still exempted from these rules in many cases.
The EEOC Guidance Offers an Expansive View of Hostile Work Environments
Building on Supreme Court precedent, the EEOC takes a broad view of what constitutes an unlawful hostile work environment - one that is subjectively abusive to the victim and would be objectively offensive to a reasonable person. A single severe incident, like a sexual assault or use of the N-word by a supervisor, could qualify. But so could frequent, less severe behaviors like sexual jokes and gender-based insults that cumulatively poison the workplace over time.
Context also matters. Comments or conduct that may seem ambiguous in isolation can become harassing when viewed through the lens of power disparities, stereotyping and the perspective of the victim's identity group (e.g. race, gender). This comports with the realities of how harassment often operates through coded language and builds up gradually.
The EEOC makes clear that employers cannot use prevailing workplace culture or "crude environment" excuses to justify allowing harassment to persist. Even if targets go along to get along, the conduct can still be unwelcome and illegal.
In laying out these principles, the EEOC provides a roadmap for establishing hostile work environment claims and pushes back against overly narrow interpretations by some courts. Employees experiencing abusive workplaces based on protected characteristics should have an easier time proving their case.
While these EEOC guidelines do not have the force of law, they establish standards expected to influence court rulings and motivate employers to reexamine their anti-harassment policies and training. In an era of profound social change around gender, race and identity issues, the EEOC is positioning itself as a key player in combating workplace cultures of abuse and discrimination. How readily employers adapt to these shifting expectations could determine their legal risk for years to come.
Contact us today for a comprehensive review and revision of policy and procedures.