The United States Equal Employment Opportunity Commission ("EEOC") released proposed guidance on September 29, 2023, that explains the legal standards imposed and outlines employer liability with respect to harassment claims under the federal employment discrimination laws enforced by the EEOC. This proposed guidance was approved by the commission in a 3-2 vote and is the first guidance published on these issues since 2017. This consolidates several earlier EEOC guidance documents including Compliance Manual Section 615: Harassment; Policy Guidance on Current Issues of Sexual Harassment; Policy Guidance on Employer Liability under Title VII for Sexual Favoritism; Enforcement Guidance on Harris v. Forklift Sys., Inc.; and Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors.
What is new?
Most notably, the new proposed guidance incorporates recent changes in the law under the landmark United States Supreme Court decision, Bostock v. Clayton County. That decision expanded the already protected characteristic of "sex" to include sexual orientation and gender identity. The guidance clarifies that, although Bostock concerned discriminatory discharge claims, the Supreme Court's reasoning extends to harassment claims in the workplace. Additionally, the guidance further examines how social media conduct on and off the clock may contribute to a hostile working environment claim when the workplace is impacted.
Examples of harassment that would give rise to liability under the proposed guidance include "epithets regarding sexual orientation or gender identity, intentional and repeated use of a name or pronoun inconsistent with an individual's gender identity, commonly known as misgendering, or the denial of access to a bathroom or other sex-segregated facility consistent with the individual's gender identity."
What does this mean for employers?
An employer covered by Title VII is not allowed to fire, refuse to hire, discriminate against, or harass an employee on account of their sexual orientation or gender identity. Employers should review their EEO policies and ensure they are consistent with updated state and federal law. Violations of Title VII can result in costly lawsuits by employees seeking, among other relief, back pay, front pay, emotional distress damages, attorney's fees, and punitive damages flowing from the violation. A renewed attention to these laws is especially important given the EEOC's statistical data reflects a more than 50% annual increase in employment lawsuits for fiscal year 2023.
The EEOC is welcoming members of the public to submit comments about the proposed guidance through November 1st. As the courts and EEOC continue to define employer responsibility and liability in the context of Title VII, Poyner Spruill attorneys are here to assist with all of your employment policy concerns.
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