April 29, 2024
Tara Paulson, Mark Fahleson, Julie Schumacher
Rembolt Ludtke Employment & Labor Law Practice Group
Not wanting to be left out after last week’s flurry of workplace law activity from other federal agencies, today the federal Equal Employment Opportunity Commission (EEOC) released its new comprehensive guidance on harassment in the workplace. 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.
The impetus for the EEOC’s new publication was to address developments that have occurred since it last published its enforcement guidance. Among other things, in 2020 the U.S. Supreme Court interpreted Title VII’s protection against “sex” discrimination to include discrimination on the basis of sexual orientation and gender identity. Moreover, the EEOC cited the need to address emerging issues, such as online harassment.
With respect to gender identity discrimination, the EEOC guidance touches upon sex-segregated facilities and the use of an employee’s preferred pronouns. Citing a federal sector administrative case the EEOC was involved in, the guidance notes that Title VII’s prohibition on sex discrimination requires employers to provide transgender employees access to sex-segregated facilities consistent with their gender identity. In addition, citing another federal sector case, the guidance provides that the repeated and intentional use of pronouns inconsistent with an employee’s gender identity could contribute to a hostile work environment.
The guidance provides 77 hypotheticals, many based on actual cases, to further define the contours of workplace harassment law and employer obligations and liability. For example, with respect to online harassment, the guidance provides the following based on a 2022 case from the U.S. Court of Appeals for the Fifth Circuit:
Example 58: Conduct on Social Media Platform Outside Workplace Contributes to Hostile Work Environment. Max, a line cook at a restaurant, begins dating Anne, a server who works at the same restaurant. During their relationship, Max obtains sexually explicit images of Anne. After Anne breaks up with Max, he threatens to share the images on social media unless she gives him a second chance. When she refuses, he posts the images on a picture-sharing social media application and tags some of their coworkers. Anne overhears her coworkers making fun of the images and talking about how Anne must have poor judgment. Anne is humiliated and finds it difficult to continue to return to work. Based on these facts, the combined conduct, including the social media post, was sufficient to create a hostile work environment.
In addition, the new guidance expands on steps employers can and should take to prevent harassment, including “recurring training to all employees, including supervisors and managers.”
The EEOC’s new guidance can be found here.
The Rembolt Ludtke Employment & Labor Law Practice Group is available to assist employers with compliance with Title VII and the EEOC’s new enforcement guidance as well as providing the “recurring” employee training directed by the EEOC.
This article is provided for general information purposes only and should not be construed as legal advice. Those requiring legal advice are encouraged to consult with their attorney.
