EEOC Issues Proposed Enforcement Guidance on Harassment and Addresses LGBTQ and Racial Employment Issues

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Sexual orientation, gender identity, and race continue to be widely discussed and politicized throughout the U.S. Issues related to these protected categories also continue to arise in the workplace. The EEOC recently issued proposed enforcement guidance that will help employers address emerging issues related to these categories, including issues related to employee conflict at work.

For example, employers are dealing more frequently with issues related to employees and customers intentionally misgendering and misnaming transgender employees. The proposed EEOC guidance states that the intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (misgendering) as well as the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity will constitute actionable sex harassment.

This new guidance is the first document the EEOC commissioners have voted upon and issued on harassment since the agency’s “Enforcement Guidance on Vicarious Liability for Unlawful Harassment by Supervisors” in 1999. If the new guidance is finalized, it will supersede the 1999 and prior guidance. 

Issuing this new harassment guidance has also been a top priority of EEOC Chair Charlotte Burrows. The guidance is sub-regulatory — meaning it does not carry the weight of statutes or regulations — but it will be influential during EEOC investigations and litigation.

In addition to issues related to sexual orientation and gender identity, the new guidance also discusses race, color, and national orientation harassment and gives examples. The guidance states that harassment based on traits or characteristics linked to an individual’s race, such as their name, cultural dress, accent or manner of speech, and physical characteristics, including grooming practices — such as harassment based on hair textures and hairstyles commonly associated with specific racial groups — would violate Title VII. The proposed guidance also discusses the ways in which social media and electronic communications can affect terms and conditions of employment and thus constitute harassment. 

Employers should review the proposed guidance and, once it is finalized, update their no harassment policies and related trainings. The EEOC’s proposed guidance requires employers to provide effective anti-harassment policies, complaint processes, and trainings. It will also help employers who need to respond to employee complaints of harassment. The proposed guidance is open for public comment through November 1, 2023.

John S. Lord Jr

John (Jack) Lord Jr. is a partner and litigation lawyer with Foley Lardner LLP, and is immediate past co-chair (as of June 1, 2023) of the firm’s Labor and Employment Practice Area. Jack prevents and defends labor and employment claims against employers. He focuses his practice on employment litigation and arbitration cases, and tries matters ranging from breach of contract, disability, and national-origin discrimination claims to pregnancy and FMLA claims. He works with private and public employers in matters involving labor and employment law compliance. Jack regularly defends employers in class and collective action lawsuits. He has defended numerous entities that operate “public accommodations” against claims under Title III of the Americans with Disabilities Act. His clients operate in a wide range of industries, including many in the health care arena. Jack negotiates labor contracts and defends employers in union arbitrations. His administrative work includes defending claims before OSHA, the NLRB, and the U.S. Department of Labor’s Wage and Hour Division. He also litigates and advises on trade secret, noncompete, and other restrictive covenants as a member of Foley’s Trade Secret Noncompete Litigation Practice Area. Jack is co-chair of Foley’s Lesbian, Gay, Bisexual, Transgender, Queer and Allies Affinity Group, and is a member of the National LGBTQ Bar Association.

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