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EEOC Proposes Sweeping Employer Guidance

Dec. 8, 2023
Transgender harassment is detailed in the new document.

Employers need to be aware of an Equal Employment Opportunity Commission (EEOC) proposed guidance document that spells out how the commission intends to enforce discrimination and sexual harassment complaints in the future.

The proposed guidance describes in detail the kind of policies it expects employers to put in place and provides detailed examples of how they should be prevented and handled. It also spells out what the commission defines as discrimination involving transgender individuals. Although a guidance statement from the EEOC does not have the same force of law as a formally developed regulation, it could lead to future legal actions filed against employers.

The guidance specifically addresses gender identity and sexual orientation as categories of protected characteristics in response to developments in recent years stemming from a series of court decisions regarding these issues, note attorneys Kimberley Johnson and Preston Pugh of the Crowell & Moring law firm. “It also provides that harassment includes using gender identity epithets, intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (misgendering), harassment because an individual does not present in a manner that would stereotypically be associated with that person’s gender, and denying access to facilities consistent with gender identity,” they add.

Attorney M. Adil Yaqoob of the Ackerman law firm explains that the EEOC document cites several examples of possible harassment based on an individual’s gender identity. These can include: harassment because an individual does not present in a manner that would stereotypically be associated with that person’s gender; intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (misgendering); or denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.

EEOC issued a guidance in 2021 suggesting that misgendering and denial of bathroom or facility access consistent with an individual’s gender identity could be considered harassment, but that was struck down by a federal court in Texas. That court held that the commission exceeded its legal authority and did not follow proper notice-and-comment procedure. The new guidance proposal did include a period for public comments, which concluded on Nov. 1.

In spite of the fact that the EEOC sought public comments this time around, several attorneys have observed that having done so may not have been enough to prevent judges from still finding in future court cases that the commission policy regarding transgender discrimination represents legal overreach.

The bulk of the guidance deals with the agency’s more traditional areas of concern, such as race, religion, disability and age complaints dealing with discrimination and retaliation, and most of the issues raised basically involve restatements of previous policies. It also cites anecdotal examples of cases arising from different kinds of discrimination and how to deal with them.

“As with any charge of discrimination filed with the EEOC, the commission will evaluate claims alleging unlawful harassment based on all the facts and circumstances of the particular matter and the law,” the commission notes in the proposed guidance.

“The contents of this document do not have the force and effect of law and are not meant to bind the public in any way,” the EEOC stresses. “This document is intended only to provide clarity to the public regarding existing requirements under the law or commission policies.”

Policing Social Media

Some of the commission’s proposed strictures deal with the topic of how far employers can go in attempting to control their employees’ use of online social media, including such communications that take place outside of the workplace, point out attorneys Emily Miller and Rachel See of the Seyfarth Shaw law firm. This includes what the EEOC sees as an employer’s obligation to control the non-workplace communications arising from an employee’s personal social media activity. “Conduct that can affect the terms and conditions of employment, even though it does not occur in a work-related context, includes electronic communications using private phones, computers or social media accounts, if it impacts the workplace,” they explain

This raises the question of how far the EEOC expects an employer to go in monitoring their workers’ online behavior. “It remains unclear, however, when an employer will be said—or expected—to have knowledge of that activity or its potential spillover into a hostile work environment,” the attorneys add.

In addition to raising First Amendment and privacy concerns, another potential landmine laying in wait for employers seeking to monitor employee online use in this manner recently became a possible violation of federal labor law, according to the Seyfarth Shaw attorneys.

“Should the draft enforcement guidance take effect as written, employers will have to thread the needle between the EEOC’s requirement that they act on out-of-work conduct that creates a hostile work environment and the National Labor Relations Board (NLRB) August 2023 decision requiring that employers take care not to place impermissible restrictions on employee speech, including out-of-work speech on social media.”

The proposed guidance offers the following example: “If an Arab-American employee is the subject of ethnic epithets that a coworker posts on a personal social media page, and either the employee learns about the post directly or other coworkers see the comment and discuss it at work, then the social media posting can contribute to a racially hostile work environment.”

Yaqoob says, “Put starkly, according to the EEOC, social media posts that an employee has not personally viewed can contribute to a hostile work environment simply because the employee learned about the post as a result of the employee’s coworkers discussing the post at work.”

Employees’ use of electronic communications is defined as their private phones, computers or social media accounts, note attorneys for the law firm of Jackson Lewis.

The EEOC also stresses that harassment can be found to have taken place in the virtual workplace the same way that it can be in the physical workplace. Examples include sexist comments made by an employee during virtual meetings or racist imagery in the form of home office decorations that are visible during video conferences, which can be found to have contributed to a hostile work environment.

The EEOC under the Biden administration has made it clear that official commission policy now extends to cases involving what it defines as systemic harassment in the workplace. To help advance these enforcement goals, the guidance recommends that employers retain records of all harassment complaints and investigations.

“Employers should use these records to help identify patterns of harassment that can be useful for improving the employer’s harassment prevention measures, including employee training,” the Jackson Lewis attorneys recommend. “The EEOC views these records as relevant to employer credibility assessments and disciplinary measures.”

The guidance also insists that employers adopt a systemic remedy to address the pattern and practice, rather than only address cases of individual harassment. In addition, the attorneys say that if an employer receives frequent individual complaints of harassment, it must take steps to determine whether the complained-of conduct reflects a wider problem requiring a systemic response, including the development of comprehensive company-wide anti-harassment procedures.

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