EEOC Releases Final Guidance on Workplace Harassment
SESCO Management
The U.S. Equal Employment Opportunity Commission (“EEOC”) has released its Enforcement Guidance on Harassment in the Workplace (the “Final Guidance”).
Guidance Clarifies the Scope of Sex Discrimination and Harassment.
The Final Guidance:
- Clarifies that Title VII’s protections extend to LGBTQ employees. Specifically, it clarifies that workplace harassment includes “misgendering” employees or denying access to bathroom facilities that align with their gender identity.
- Reminds employers that discrimination and harassment based on “sex” includes harassment based on pregnancy, childbirth, and “related medical conditions,” which include employees’ decisions related to contraception and abortion.
Guidance Addresses Harassment in a Remote Work Environment.
The Final Guidance:
- Clarifies that conduct in a virtual work environment, including electronic communications using private phones, computers, or social media accounts can contribute to a hostile work environment if they impact the workplace. The EEOC states that, for example, an employee who is the subject of ethnic epithets posted on a coworker’s personal social media page could be subjected to a hostile work environment if the employee is directly exposed to the post or other coworkers see the post and discuss it at work.
- Clarifies that conduct occurring outside the workplace, including on social media, which does not target the employer or its employees and is not brought into the workplace generally will not contribute to a hostile work environment.
Guidance Updates Anti-Harassment Policy Requirements.
The Final Guidance states that a harassment and discrimination policy should be widely disseminated, comprehensible to workers, and include:
- A definition of the prohibited conduct;
- A requirement that supervisors report harassment;
- Multiple avenues for reporting harassment;
- A statement that clearly identifies accessible points of contact for reporting purposes, including contact information; and
- An explanation of the complaint process, including adequate anti-retaliation and confidentiality protections, and prompt and effective investigations and corrective action.
The Final Guidance also includes a “non-exhaustive” list of the elements of an effective training: an overview of the employer’s anti-harassment policy and complaint process; examples of prohibited harassment; information on rights for those who witness, experience, or report harassment; and clear instructions for supervisors and managers on how to prevent, identify, stop, report, and correct harassment.
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