Wading into two of the most prominent hot button issues of the day, the Equal Employment Opportunity Commission (EEOC) recently issued guidance documenting how it will enforce discrimination charges that employees file with it regarding transgender and pregnancy harassment complaints lodged against their employers in the future.
The changes were first proposed by the commission last year. The EEOC then had to sift through more than 37,000 comments that were filed by the public after the proposal was published. The final version was issued on April 29 and went immediately into effect the same day.
Although the guidance is quite detailed, it should turn out to be quite useful for employers and their attorneys, according to Robin Shea, partner with the law firm of Constangy Brooks Smith & Prophete, and who is one of the country’s most percipient labor lawyers. She says this is especially the case when it comes to what she terms as thorny “emerging issues.”
Here’s a short summary:
· The EEOC now takes the position that “repeated and intentional” misnaming or misgendering of a transgender employee could be considered unlawful harassment based on gender identity.
· It also takes the position that it is unlawful harassment to refuse to let a transgender employee use the restroom that corresponds with their chosen gender identity.
· Generally, mistreating an employee because she is having an abortion—or not having an abortion—also can be a form of unlawful harassment based on sex/pregnancy.
· There may be some exceptions to abortion harassment for religious employers and based on employees’ sincerely held religious beliefs, but don’t count on it. The EEOC is going to wait and see what the courts do in light of a Supreme Court decision last summer that imposed a more strenuous obligation on employers to accommodate employees’ religious beliefs.
In addition, unless and until courts decide otherwise, for the time being the EEOC also will continue requiring employees to use preferred pronouns and to allow transgender employees to use the restrooms of their choice, Shea points out.
Attorney Sarah Andrzejczak of the Buchalter law firm agrees that unless the courts intervene, the new guidance lays out clearly the EEOC’s position regarding the kinds of conduct and behaviors it believes constitute unlawful harassment and influence may extend beyond its immediate jurisdiction. “While the EEOC’s guidance is not law, it is likely to be cited in legal proceedings and indicates how the commission will interpret harassment cases that are brought to the agency,” she warns.
Here are key steps Andrzejczak says employers can take to navigate this guidance effectively:
Update Your Policies and Procedures. Whether independently or with legal counsel, employers should review and revise workplace policies to explicitly include protections related to sexual orientation and gender identity, and to give examples of the kind of behavior that will not be tolerated.
Provide Additional Training. Employers may wish to provide training sessions for employees to raise awareness about evolving workplace harassment issues, foster understanding, and mitigate any potential biases where possible.
Create Gender-Neutral Facilities. She says that employers should ensure access to restroom facilities that align with employees’ respective gender identities. Where feasible, Andrzejczak suggests that employers may wish to consider establishing gender-neutral restroom facilities to provide an inclusive option for all employees.
Address Concerns Proactively. By fostering open dialogue and promptly addressing employees’ concerns or objections in a respectful and proactive manner, employers can prevent issues from escalating. “This approach emphasizes the significance of cultivating a supportive work environment where every individual feels valued and heard,” she adds.
Monitor and Enforce Compliance. Regularly assess workplace practices to ensure adherence to the EEOC’s guidance and make sure to promptly address any instances of discrimination or harassment.
What Else Lies Ahead
While approving of every part of the guidance, Shea is not entirely unhappy with the new guidance. “I don’t agree with every position taken by the EEOC in this Enforcement Guidance, but for the most part, it seems pretty sound.” She also laid out some of the other issues addressed that employers should watch out for.
Employers should be aware that harassment based on “sex” includes harassment based on pregnancy or pregnancy-related conditions (including lactation, contraception and abortion—either having one or not having one), sexual orientation and gender identity, she stressed.
The guidance discusses what the EEOC calls “Cross Bases Issues,” Shea adds. “I hate that name, but the concept is helpful.” This includes harassing someone because of a mistaken belief that they belong to a certain protected group (for example, a Mexican who is harassed by a co-worker because the co-worker thinks he’s Pakistani). Also included are “associational discrimination” (for example, harassing a white employee because she is married to a Black man), and “intraclass harassment” (harassment where the perpetrator and the victim are members of the same protected category).
Regarding the latter, the EEOC provides some examples. These include an employee in her 50s harassing a 65-year-old because of the latter’s age, and a woman harassing female co-workers about their child-bearing choices. Finally, there is “intersectional harassment”—for example, harassing Black women but not Black men or white women—and harassment based on stereotypes.
In discussing whether certain behavior would be considered offensive to a reasonable person, the guidance makes the point that this kind of perception can change over time. For example, “after the end of a romantic relationship, or where a colleague’s race-based jokes are initially dismissed as poor attempts at humor but become unwelcome when they persist or are later accompanied by additional race-based conduct.”
The guidance also holds that being fine with some kinds of behavior from certain co-workers doesn’t mean that similar behavior isn’t unwelcome when it comes from others. “All good points to cover in harassment training,” Shea reminds employers.
Also keep in mind that when it comes to determining whether the behavior would be offensive to a reasonable person, the EEOC has said it will look at this topic from the viewpoint of a reasonable person in the victim’s protected group, rather than some generic “reasonable person.”
In another interesting development regarding sexual or religious harassment, the guidance clarifies that one request for a date, or one attempt at religious proselytization, may not be harassing, but repeated overtures at some point could create a hostile work environment.
Regarding social media, the EEOC holds that if an employee posts offensive material on a personal account, but the post does not target co-workers, the post will not normally be considered harassing, even if co-workers see the post and are offended by it. On the other hand, if the employee’s offensive post does target particular co-workers, then it is likely to be considered harassing. Not surprisingly, “revenge porn” is considered unlawful sexual harassment, Shea notes.
The commission says employers should accommodate their employees’ religious beliefs unless doing so threatens to create a hostile work environment for other employees. “This seems as if it could apply to employees who have religious objections to using preferred names and pronouns, but again, unless a court decision forces the EEOC to do so, employers should not expect the agency to take a favorable view of that type of religious accommodation,” Shea says.
She particularly appreciates one point the guidance stresses: “A statement that an employer should not presume guilt just because the alleged harasser is a member of a particular protected group. And the EEOC actually uses the example of a man accused of sexual harassment, saying that the employer should not presume that the accused is guilty just because he’s a man. Way to go, EEOC!”
Andrzejczak believes that if employers adhere to new guidance, it will help to cultivate a workplace culture that prioritizes respect, equality and inclusion. “Ultimately, navigating the EEOC’s newest guidance on workplace harassment is not just about compliance—it is about fostering a workplace where everyone feels valued, respected and empowered to bring their authentic selves to work every day,” she concludes.
