The U.S. Equal Employment Opportunity Commission (EEOC) will likely release updated guidance on harassment in the workplace for the first time in more than 25 years.
The guidance reflects notable changes in the law, including the #MeToo movement, and emerging issues, including virtual or online harassment. Unless delayed by litigation or other challenges, the EEOC should adopt the guidance in the first quarter of 2024.
The guidance explains the legal standards and employer liability for harassment claims under the federal employment discrimination laws enforced by the EEOC. These laws offer protections to covered employees from harassment based on race, color, religion, sex (including sexual orientation, transgender status, and pregnancy), national origin, disability, age (40 and older), or genetic information.
The guidance reflects a wide range of scenarios, incorporates updates on current case law regarding workplace harassment, and addresses digital technology and how social media posts and other online content can contribute to a hostile work environment.
Laws protect workers’ pregnancy-related decisions. The guidance provides that sex-based harassment includes harassment based on pregnancy, childbirth, or related medical conditions (including lactation and harassment based on a woman’s reproductive decisions, such as decisions about contraception or abortion).
The guidance provides added protection for LGBTQ+ workers. The guidance provides that sex-based discrimination includes discrimination based on sexual orientation and gender identity. Accordingly, sex-based harassment includes harassment based on sexual orientation and gender identity, including how that identity is expressed.
The guidance asserts that harassment can occur virtually. The guidance provides that virtual harassment occurs within the work environment if it is conveyed using work-related communications systems, accounts, or platforms, such as an employer’s email system, electronic bulletin board, instant message system, videoconferencing technology, intranet, public website, or official social media accounts. As with conduct within a physical work environment, conduct within a virtual work environment can contribute to a hostile work environment. This can include, for instance, sexist comments made during a video meeting or racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting.
Employers should review the proposed guidance and make sure company policies align with modern standards. In addition, employers should provide training to avoid common mistakes and how to address harassment claims.
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