Updated EEOC Harassment Guidance Seeks Public Feedback

The EEOC released an updated version of its proposed  “Enforcement Guidance on Harassment in the Workplace” on September 29, 2023. This is updated from the previous version that was released in 2017 but never finalized. The updates address newer EEO protections as well as workplace harassment occurring virtually.

To align with the U.S. Supreme Court’s decision in Bostock v. Clayton County, the proposed guidance explicitly states that harassment and discrimination on the basis of sexual orientation and gender identity is protected against under Title VII. The guidance provides specific examples of prohibited discrimination such as intentional and repeated misgendering, denial of access to sex-segragated facilities that are consistent with an individual’s gender identity, and harassment based on pregnancy, childbirth, or reproductive decisions.

Additionally, the updated proposed guidance clarifies that employers are not required to accommodate religious expression that creates, or reasonably threatens to create, a hostile work environment. Importantly, employers are required to protect workers against religiously motivated harassment.

Finally, the updated proposed guidance confirms that virtual workplace conduct has the potential to create a hostile work environment, and that such conduct would be prohibited under title VII.

The guidance is available for public comment until November 1, 2023. You can review the proposed guidance at eeoc.gov, and comments can be submitted at regulations.gov.

For more from the EEOC, see our article here.