On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) finalized its harassment guidelines addressing workplace misconduct. The new guidelines, which supersede the EEOC’s 1990s publications, address the #MeToo movement, the 2020 Bostock v. Clayton County, Georgia decision affirming sexual orientation and gender identity as protected classes under Title VII, teleworking and social media.
The new publication provides a framework for evaluating whether conduct violates federal equal employment opportunity law with sections focusing on the three components of a harassment claim. In addition to providing an analysis framework, the new guidance provides several examples of discriminatory behaviors that include interactions and communications taking place during video/remote meetings and on social media.
Under the terms of the new guidance, Title VII protections can be triggered by intrusive questions about an employee’s:
- Sexual orientation
- Gender identity
- Gender transition
- Intimate body parts
Title VII can also be triggered by:
- “Outing” (disclosing an individual’s sexual orientation or gender identity without permission)
- “Misgendering” (repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity)
- Denying an employee access to a bathroom or other workplace facility consistent with their gender identity
Employers should take note of Sections III and IV that break down harassment that affects employment conditions and employer liability. To ensure compliance with the new guidance, employers should specifically ensure that management and supervisory staff are adequately trained to recognize discriminatory behaviors and are capable of effectively addressing such misconduct.
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