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New EEOC Guidance Explains Agency's Position on Developing Harassment Claims

    Client Alerts
  • October 13, 2023

Earlier this month, the Equal Employment Opportunity Commission (EEOC) issued a proposed guidance on workplace harassment. The EEOC intends the guidance to replace the current document that was issued in 1999.

While not a formal regulation, the new guidance explains the agency’s position with regard to various forms of harassment of employees in a protected classification. While most of the document summarizes existing case law and EEOC enforcement positions, it gives an indication of how the agency will react to developing theories of harassment.

  • The EEOC makes clear that harassment on the basis of sexual preference or gender identity is a form of prohibited sex discrimination under Title VII. The agency said that denying employees access to restroom facilities consistent with their gender identity or repeated misuse of pronouns can rise to the level of a hostile work environment under Title VII.
  • The guidance attempts to balance employees’ rights to religious expression at work and a co-workers’ right to an environment free of workplace harassment. While recent U.S. Supreme Court decisions have swung the pendulum toward broader recognition of religious rights, the EEOC says that employees must be free from proselytization or other religious activities that rise to the level of a hostile work environment.
  • The EEOC repeated its earlier position that harassment of female employees based on reproductive choices can form the basis of a gender harassment claim. This protection extends to employees' choices with regard to abortion and contraception.
  • The guidance gives examples of when employees with remote working arrangements can be subjected to a hostile work environment, including comments and imagery associated with video meetings.

The EEOC is accepting comments on the proposed guidance through November 1.

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