New EEOC Workplace Harassment Guidance Expands Workplace Harassment to Include Misgendering and Gender Identity Affirming Bathrooms

On April 20, 2024, the Equal Employment Opportunity Commission (EEOC) updated its enforcement guidance on workplace harassment for the first time in almost 30 years, most notably expanding Title VII protections afforded to LGBTQ+ employees.

The newly published Enforcement Guidance on Harassment in the Workplace is 144 pages in length and wide‑ranging in its substantive scope. The Guidance provides several key updates to the legal standards for employer liability under federal employment discrimination laws that protect covered employees from harassment based on race, color, religion, sex (including pregnancy, childbirth or related medical conditions; sexual orientation; and gender identity), national origin, disability, age, or genetic information. The key updates include:

Race-Based Harassment: Harassing conduct about race includes not only racial epithets but also offensive comments based on stereotypes or traits and characteristics about a complainant’s race, such as the complainant’s name, cultural dress, accent or manner of speech, hairstyles or hair textures, and other physical characteristics.
Color-Based Harassment: Includes harassment due to an individual’s pigmentation, complexion, skin shade, or tone.
National Origin-Based Harassment: Includes ethnic epithets as well as derogatory comments about an individual’s traits or characteristics linked to the individual’s national origin, such as physical characteristics, ancestry, ethnic, or cultural characteristics (e.g., attire or diet), and linguistic characteristics (e.g., a non-English language accent or lack of fluency in English).
Religion‑Based Harassment: Includes religious epithets or offensive comments about a complainant’s religion (including a lack of religious belief), religious practices, or religious dress, as well as harassment based upon a complainant’s request for an accommodation because of a religious belief.
Sex-Based Harassment: Includes conduct of a sexualized nature, such as unwanted conduct based upon sexual attraction or involving sexual activity, as well as harassment based on pregnancy, childbirth, or related medical conditions including issues involving lactation, use or nonuse of contraception, and the decision to have or not have an abortion or vasectomy.
Age‑Based Harassment: Includes harassment based upon negative perceptions about older workers or stereotypes about older workers, even if not motivated by animus, such as pressuring an older employee to transfer to a job that is less technology‑focused because of the perception that older workers are not well‑suited for such work.
Disability‑Based Harassment: Includes harassing behavior that targets, mimics, or mocks the manner in which an employee moves, looks, or speaks, as well as commentary that criticizes an employee’s receipt of a reasonable accommodation due to a disability as unfair “special treatment.”
Genetic‑Based Harassment: Includes harassment based upon an individual’s or family member’s genetic test or family medical history, such as harassing an employee’s carrying of a gene linked to cancer or because an employee’s family member recently experienced a severe case of a virus.
Objectively Hostile Work Environment Created Even Though a Complainant Continued to Perform Well: Although harassing conduct may not result in a decline in work performance or in psychological injury, the nature of the harassing behavior and the complainant’s reaction may be sufficient to create a hostile work environment if the harassing conduct made it more difficult for a reasonable person in the complainant’s position to do their job.
Harassing Conduct Occurring Outside of Regular Place of Work: May still give rise to a hostile work environment claim if the harassing behavior occurred at an employer‑sponsored/hosted event or if the off‑site behavior has negative consequences in the workplace.
Joint Employer Liability: If an individual has been assigned by an employment agency to work for a client, both the agency and the client have a responsibility to take corrective action when it has notice of harassment occurring at either entity, as employers have a responsibility to prevent and correct the harassment of both non‑direct hire employees and permanent employees.
Harassment Based on Perceived Protected Characteristics: Even if the perception is incorrect, the related conduct still constitutes unlawful harassment under federal antidiscrimination law.
Intraclass Harassment: A complainant may be harassed by a colleague with whom the complainant shares the same national origin, sex, or other protected characteristic (e.g., age 40 or older).

Most notably, the new guidance is reflective of the 2020 Supreme Court decision in Bostock v. Clayton Cnty., 590 U.S. 644 (2020),which held that Title VII’s prohibition on employment discrimination based on sex includes discrimination on the basis of sexual orientation and gender identity.

In its most recent guidance, the EEOC explains that sex‑based harassment includes harassing behavior that targets how an employee expresses their gender identity. For example, the EEOC explains that harassing behavior includes the denial of an employee’s access to a bathroom or other sex‑segregated facility consistent with the individual’s gender identity. Harassing behavior may also include targeting an employee because that individual does not present in a manner that would stereotypically be associated with that person’s sex; the repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); physical assault due to sexual orientation or gender identity; or outing (disclosure of an individual’s sexual orientation or gender identity without permission).

Next steps

Employers should immediately revisit and update their workplace policies to ensure their anti‑harassment policies prohibit all forms of harassment, including behavior that targets an employee’s gender identity. Employers’ HR professionals should also offer training to their employees to ensure that individuals are respectful of their colleagues’ preferred names and pronouns, as well as their right to privacy concerning their sexual orientation.

Buchanan’s Labor and Employment team of attorneys is ready to assist employers with ensuring that their policies comply with the new EEOC guidance and offer additional guidance on the EEOC’s evolving position on prohibited employment discrimination.