Enforcement Guidance on Harassment in the Workplace
The US Equal Employment Opportunity Commission updated its guidance on harassment in the workplace by expanding sex to include gender identity, thereby redefining sex-based harassment to include behaviors such as misgendering; disclosing an individual’s prior gender identity; and denying individuals the bathroom, locker room, or other sex-segregated facility that corresponds to their chosen gender identity.
The update includes the following guidance:
“Sex-based discrimination under Title VII includes employment discrimination based on sexual orientation or gender identity. Accordingly, sex-based harassment includes harassment based on sexual orientation or gender identity, including how that identity is expressed. Harassing conduct based on sexual orientation or gender identity includes epithets regarding sexual orientation or gender identity; physical assault due to sexual orientation or gender identity; outing (disclosure of an individual’s sexual orientation or gender identity without permission); harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex; repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.”
As with other guidance, these updates do not have the force of law, but they are the new standard by which the US Equal Employment Opportunity Commission (EEOC) will investigate reports of discrimination in the workplace. State and local government agencies are affected, since EEOC oversees harassment and discrimination complaints for agencies with 15 or more employees who worked for at least 20 calendar weeks in the current or prior year.
When EEOC issued similar technical guidance in 2021, the US District Court for the Northern District of Texas struck it down, with Judge Matthew J. Kacsmaryk writing: “But Title VII—as interpreted in Bostock—does not require such accommodations.” The court ruled that although Title VII prevents employment discrimination based on sexual orientation and gender identity under Bostock, it doesn’t necessarily prohibit conduct specifically related to bathroom accommodations, dress codes, and pronoun usage. A judge in Tennessee also temporarily blocked the 2021 guidance because it interfered with laws in various states. That court found that the guidance also violated the Administrative Procedure Act and EEOC’s own rules by “issuing substantive, legislative rules through improper procedures.”
A coalition of 18 state attorneys general filed a lawsuit claiming that the EEOC guidance unlawfully extends Title VII protections against sex-based discrimination to cover gender identity.
Enforcement Guidance on Harassment in the Workplace
April 29, 2024
