As of 2023, the Equal Employment Opportunity Commission (EEOC) has proposed an update to its Enforcement Guidance, signaling a significant shift in the approach to workplace anti-harassment compliance. The proposed enforcement guidance introduces several key changes, with a notable emphasis on expanding protections related to sexual orientation, gender identity, and sex- or pregnancy-based medical conditions. Employers must be prepared to put these changes into place when enforced by the EEOC. The proposal is expected to be finalized after the public comment period and will supersede EEOC legislation from the ‘80s and ‘90s.
Harassment Basics and Legal Protections
Before delving into the specifics of the update, let’s revisit the foundational principles of harassment in the workplace. Understanding the legal protections against workplace discrimination is paramount for employers aiming to create a safe and inclusive environment for their employees. It ensures compliance with the law, fosters a respectful workplace culture, and mitigates the risk of legal consequences. By being well-versed in these protections, employers can establish policies and practices that promote fairness, equity, and dignity, ultimately contributing to a positive work environment where employees feel valued and protected.
It’s most important to understand the meaning of protected characteristics, also known as protected classes, in the workplace. According to the EEOC, it is against the law to discriminate against applicants, employees, or former employees based on these specific personal traits. Current protected classes include race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin or ethnicity, age (40 or older), disability, and genetic information (including family medical history).
Understanding the EEOC's 2023 Update
The proposal has introduced the term “covered bases” to extend the protected characteristics of race, color, national origin, religion, sex, disability, and age and also to include harassment rooted in stereotypes associated with individuals from these categories. The guidance offers a wide range of illustrations and examples to explain better what constitutes harassment for each of these classes. For example, age discrimination could be pressuring an older employee to transition to a role with less emphasis on technology based on stereotypes, or racial discrimination could be assuming a lack of fluency in English from people of a certain race.
Another major proposed change to EEOC legislation is that the protected characteristics for employees are planned to expand from their current definitions. These changes are based on recent case law and cultural shifts, including the #MeToo movement and the increase in online harassment.
Sexual Orientation and Gender Identity in Focus
The guidance proposal integrates changes influenced by the 2020 Bostock v. Clayton County decision by the U.S. Supreme Court, expanding the definition of "sex" in Title VII of the Civil Rights Act to include sexual orientation and gender identity. The proposed guidance recognizes that the Bostock decision logically extends to workplace harassment claims based on an individual's sexual orientation or gender identity, encompassing a spectrum from physical assault to intentional misgendering or denial of access to restroom facilities consistent with one's gender identity.
Tackling Sex-Based Discrimination and Harassment
This EEOC update also broadens the scope of sex-based harassment to encompass factors like pregnancy, childbirth, and related medical conditions. The extended definition protects against harassment tied to decisions about contraception and abortion, as well as lactation.
Broadening these definitions ensures that employees facing harassment or discrimination based on aspects of their reproductive health are afforded the necessary legal protection and recourse. This progressive approach reflects a commitment to creating workplaces that are inclusive, supportive, and free from discrimination across all facets of an individual's life.
Discrimination in a Remote Environment
Digital communication has significantly impacted harassment and discrimination, with a specific focus on the legal considerations in the realm of virtual work environments. Navigating these nuances is critical as remote work becomes more prevalent.
While employers are generally not accountable for non-work-related conduct, they may face liability if such conduct spills into the workplace, leading to a hostile work environment. This encompasses off-duty electronic communications on private devices or social media that affect employment conditions. The rise of digital technology has increased the likelihood that the non-consensual sharing of intimate images on social media could contribute to a hostile work environment when it impacts the workplace.
Actionable Steps for Employers
In light of this EEOC guidance, we strongly encourage employers to embrace these proposed legislative changes and take proactive measures to create a harassment-free workplace. The landscape of legal requirements is ever-evolving, and failure to stay abreast of these changes can lead to serious consequences. Non-compliance may result in legal actions, financial penalties, damage to reputation, and a toxic work environment. The pain of navigating these requirements is significant, emphasizing the critical need for proactive measures. By embracing these changes and fostering a culture of mutual respect and understanding, employers not only ensure legal compliance but also contribute to a positive work environment that benefits both employees and the overall health of the organization.
Stay ahead of workplace compliance by regularly reviewing your anti-harassment policies and providing ongoing discrimination training. EasyLlama’s Harassment Prevention training is always updated to reflect the latest legislation and EEOC standards to keep your workplace compliant and safe for employees of all backgrounds. Learners will better understand essential anti-harassment policies and laws, providing the necessary skills to create a harassment-free workplace. Access your free course preview today to learn more!
