John H. Chun, Partner

Recently, the U.S. Equal Employment Opportunity Commission (EEOC) published updated final guidance on harassment in the workplace under existing federal laws (press release and guidance available here), which took effect April 29, 2024. Although New York employers have already been obligated to follow state and local employment laws that are “stricter” than federal law for quite some time, this guidance is a useful resource for both human resources teams and legal departments.

As a reminder, the EEOC has administrative oversight for a wide range of federal workplace laws that cover discrimination and harassment based on race, color, religion, sex (including pregnancy, childbirth or related medical conditions; sexual orientation; and gender identity), national origin, disability, age (40 or older) or genetic information (including family medical history).

As the EEOC itself stated, this “new guidance updates, consolidates, and replaces the agency’s five guidance documents issued between 1987 and 1999, and serves as a single, unified agency resource on EEOC-enforced workplace harassment law.” In particular, the lengthy guidance “[i] includes over 70 examples illustrating unlawful harassment, including situations involving older workers, immigrant workers, and survivors of gender-based violence; [ii] illustrates how employees may be subjected to unlawful harassment not only by coworkers or supervisors, but also by customers, contractors, and other third parties; and [iii] addresses the growth of virtual work environments and the increasing impact of digital technology and social media on how harassment occurs in the work environment.”

Here are some of the key takeaways from the new guidance:

• Unlawful workplace harassment against LGBTQ+ individuals is now more clearly recognized and illustrated under Title VII, in line with a 2020 Supreme Court decision that held prohibitions against gender discrimination included sexual orientation and gender identification. Such discrimination can include, but is not limited to, epithets, physical assault, disclosing an individual’s sexual orientation or gender identity without permission, or other harassing conduct toward individuals because they do “not present in a manner that would stereotypically be associated with that person’s sex,” misgendering (i.e., repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity), or “the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.”

• Another focal point is workplace protections for pregnancy, childbirth, related medical condition, and lactation – in line with the recent Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP). In particular, the EEOC states that harassment based on pregnancy, childbirth, or related medical conditions “can include issues such as lactation; using or not using contraception; or deciding to have, or not to have, an abortion,” if that harassment “is linked to a targeted individual’s sex.”

• “[C]olor-based harassment due to an individual’s pigmentation, complexion, or skin shade or tone is independently covered by Title VII,” and need not be related to harassment based on race or national origin.

• Religious protections in the workplace may require a careful balancing act. On the one hand, employers must accommodate employees’ sincerely held religious beliefs pursuant to Title VII. At the same time, however, employers should not accommodate religious expression that reasonably threatens to create a hostile work environment.  To illustrate, the EEOC said: “If a religious employee attempts to persuade another employee of the correctness of his beliefs, the conduct is not necessarily objectively hostile . . . If, however, the employee objects to the discussion but the other employee nonetheless continues, a reasonable person in the complainant’s position may find it to be hostile.”
   
• Employers must be aware of “interclass” and “intersectional” harassment, with the former relating to harassment in which the harasser is in the same protected category as the victim (which constitutes discrimination all the same), and the latter arising when an individual is targeted based on membership in more than one protected category.
   
• As a reminder, the EEOC reiterated that these laws still are not intended to create a general civility code, meaning “[f]or harassment to violate the law, it must be based on a legally protected characteristic [and that] [b]eing rude, teasing, or mistreating somebody because of a personality conflict, without a connection to a protected characteristic, does not violate the laws enforced by the EEOC.”
   
• However, employers must remember that while harassment under federal law must be sufficiently severe or pervasive to alter the terms and conditions of employment by creating a hostile work environment, retaliation prohibits “anything that might deter a reasonable person from engaging in protected activity.”
   
• Of course, particularly after the pandemic, the EEOC made clear that any and all harassment prohibited by law applies the same virtually as it would in person. Therefore, conduct or speech that is discriminatory, harassing, or retaliatory under the law will remain so even if it occurs “virtually.”

In conclusion, while employers do not have any new obligations, per se, from the EEOC’s guidance, this guidance should motivate all employers – particularly those outside of jurisdictions such as New York and California (where state and local employment laws are much more developed) – to review their policies and procedures with fresh eyes in an effort to stay afloat amidst the myriad, rapid developments in employment law from the past several years.

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For more information on this issue or other employment matters, please contact:

Carol M. Goodman at +1 212 592 1465 or [email protected]
Basil C. Sitaras at +1 212 592 1572 or [email protected]
Pamela A. Frederick at +1 212 592 1591 or [email protected]
Meaghan Roe at +1 212 592 1632 or [email protected]

© 2024 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.