The U.S. Equal Employment Opportunity Commission (EEOC) published new guidance on harassment in the workplace on April 29, 2024. The EEOC’s new guidelines cover not only sexual harassment, but a wide range of illegal harassment, including on the basis of race, disability, sexual orientation, gender identify, age, and religion. The guidance supersedes guidance going back as far as 1987.
Under the new guidance, unlawful harassment based on sex may include “repeated and intentional” misnaming or misgendering of a transgender employee. Another example of unlawful harassment provided was a refusal to let a transgender employee use the restroom that corresponds with their gender identity. Additionally, outing someone based on their sexual orientation or gender identity may constitute workplace harassment. The EEOC also stated that harassment on the basis of sex includes harassment regarding lactation and morning sickness, and the decision on whether to obtain an abortion.
The EEOC also provides additional clarity on the often used “reasonable person standard.” The EEOC stated that in determining whether behavior that was accused of being harassment would be offensive to a reasonable person, they will consider the perspective of a reasonable person in the alleged victim’s protected class, taking into account the experiences of individuals in different protected classes. This helps to eliminate the viewpoints of other individuals whose experiences and perspectives may not align closely enough with that of the victim.
In its update to guidance on workplace harassment, the EEOC also discusses when the use of social media posting may be considered harassing. They state that for a social media post to likely be considered harassing it will typically require that 1) an individual posts something offensive and 2) the post targets particular co-workers. Without the second element of targeting specific co-workers, an offensive post will not by itself normally be considered workplace harassment.
These are a few of the highlights from the EEOC guidance on workplace harassment. The guidance provides many illustrative examples and is a helpful resource for employees to educate themselves on their rights in the workplace and for employers seeking to address workplace harassment effectively.
