On April 29, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) issued new enforcement guidance on harassment in the workplace. The guidance is the result of approximately seven years of effort and replaces previous guidance from 1987 through 1999. The EEOC addresses a variety of topics common in the 21st century workplace, including the paradigm shifting #MeToo movement and the 2020 Supreme Court ruling in Bostock v. Clayton County. While the entire document is a useful summary of applicable law, a few issues stick out to us.
First, given the Supreme Court's ruling in Bostock that Title VII prohibits discrimination on the basis of sexual orientation and gender identity, the EEOC discusses various issues that may arise for gay or transgender employees. The EEOC explained that using slurs or asking intrusive questions about an employee's sexual orientation or gender identity can constitute unlawful harassment. Likewise, the EEOC explained that regular and intentional "misgendering" of a transgender employee can be unlawful harassment.
Second, the EEOC confirmed that "[a] hostile work environment claim may include conduct that occurs in a work-related context outside an employee's regular workplace." Such context could include employer sponsored holiday parties, "happy hours," or training. It could also include conduct occurring outside work hours at employer-provided housing. Finally, the EEOC acknowledged the increasingly virtual nature of today's workplace, and found that harassing conduct may also "occur within the work environment if it is conveyed using work-related communications systems . . . or technologies."
Third, the EEOC recognized that euphemistic language and conduct that may not be overtly discriminatory may still constitute unlawful harassment. "In some contexts, terms that may not be facially discriminatory when viewed in isolation, such as 'you people,' may operate as 'code words' that contribute to a hostile work environment based on a protected characteristic." Similarly, the EEOC provided the example of a Black truck driver repeatedly finding banana peels on his truck with no explanation as invoking "monkey imagery," which "given the history of racial stereotypes against Black individuals" could reasonably be seen as a racial insult.
The EEOC's new guidance demonstrates dramatic shifts in workplace expectations over the last 25 years. Employers should carefully consider the analyses and examples provided by the EEOC and evaluate how their own policies and procedures address the unique challenges posed by the modern workplace.
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