The U.S. Equal Employment Opportunity Commission (EEOC) on Monday, April 29, published a new guidance updating longstanding guidance on workplace harassment to align with the Supreme Court’s 2020 decision in Bostock v. Clayton County ruling that in existing laws prohibiting harassment based on “sex,” “sex includes” sexual orientation and gender identity.
“By providing this resource on the legal standards and employer liability applicable to harassment claims under the federal employment discrimination laws enforced by the EEOC, the guidance will help people feel safe on the job and assist employers in creating respectful workplaces,” noted an EEOC press release.
“These laws protect covered employees from harassment based on race, color, religion, sex (including pregnancy, childbirth or related medical conditions; sexual orientation and gender identity), national origin, disability, age (40 or older) or genetic information,” the press release continued.
The new guidance “updates, consolidates and replaces the agency’s five guidance documents issued between 1987 and 1999, and serves as a single, unified agency resource on EEOC-enforced workplace harassment law. It reflects the Commission’s consideration of the robust public input that it received after the guidance was posted for public comment in fall 2023,” the press release noted.
Kelley Robinson, president of the Human Rights Campaign, said of the new guidance, “Workplace harassment can so easily be devastating to LGBTQ+ people, whether it comes from managers or peers or others on the job. This mistreatment can vary greatly, and it’s especially prevalent in the form of intentional misgendering or deadnaming for transgender and nonbinary people.
“Combined with the difficulties that many LGBTQ+ people have in finding employment,” Robinson continued, “members of our community can feel trapped in cycles of harassment with no options to get away from it. This new EEOC guidance should make it clear to all employers: They have an obligation to provide a workplace free from harassment for all employees – without exception.”
EEOC Chair Charlotte A. Burrows said, “Harassment, both in-person and online, remains a serious issue in America’s workplaces. The EEOC’s updated guidance on harassment is a comprehensive resource that brings together best practices for preventing and remedying harassment and clarifies recent developments in the law. The guidance incorporates public input from stakeholders across the country, is aligned with our Strategic Enforcement Plan, and will help ensure that individuals understand their workplace rights and responsibilities.”
Between fiscal years 2016 and 2023, more than a third of all discrimination charges received by the EEOC included an allegation of harassment based on race, sex, disability, or another characteristic covered by the laws enforced by the agency. Also, since fiscal year 2018, harassment has been alleged in over half of federal sector equal employment opportunity complaints. In addition, among the 143 merits lawsuits that the Commission filed in fiscal year 2023, approximately 35 percent of those cases included an allegation of harassment.
The EEOC’s new guidance comes in the wake of a new guidance recently issued by the U.S. Department of Education noting that prohibitions of discrimination based on “sex” included in Title IX also prohibit discrimination based on sexual orientation and gender identity. On Monday — the same day the EEOC issued its new guidance — Texas Attorney General Ken Paxton filed suit against the federal government claiming the Education Department guidance endangers women and is unconstitutional, and Texas Gov. Greg Abbott directed public schools in the state to ignore that federal guidance.
Schools that refuse to follow U.S. Department of Education regulations and rules risk losing federal funding.
— Tammye Nash
