Long time coming: The guidance is the first workplace harassment guidance issued by the Commission since 1999. Previously attempted in 2017, the need for new guidance became a priority following the Supreme Court’s 2020 decision in Bostock v. Clayton County which affirmed that Title VII prohibits harassment and discrimination on the basis of sexual orientation and gender identity.
What’s new? The new guidance directly addresses the new scope of Title VII protections as established by the Supreme Court in Bostock (as interpreted by the current Commission’s Democratic majority). Accordingly, much of the guidance focuses on harassment and discrimination related to sexual orientation and gender identity. According to the Commission, the following could trigger Title VII liability:
- Intentional and continued refusal to use preferred pronouns;
- Overly intrusive questions regarding sexual orientation or gender identity;
- Denying bathroom access consistent with gender identity;
- Comments about clothing in relation to gender identity.
Takeaways for employers:
- The guidance is not legally binding and therefore creates no new legal obligations for employers.
- Employers should instead view the guidance as both a blueprint for how the current EEOC will enforce Title VII, and a reference point for company anti-harassment and anti-discrimination policies.
- Courts may not always agree with the EEOC’s interpretation of the scope of Title VII protections as laid out in this guidance, however, it provides the position of the independent agency charged with enforcing and interpreting the law.
- Some efforts to follow the EEOC’s guidance (and comply with Title VII generally) may incur separate complaints from employees on the basis of religious accommodation – ensuring bathroom access based on gender identity, for example.
- Consistent communication (which can include training) regarding company harassment and discrimination policies is critical to ensure Title VII compliance and mitigate any potential backlash from employees.
