EEOC Issues Final Guidance on Workplace Harassment
You may recall that the EEOC issued a proposed Enforcement Guidance on workplace harassment last year. Well, they issued the final Guidance in April, and it contains a number of items that will impact HR professionals.
-
Harassing an employee because she chooses to have an abortion – or chooses not to have an abortion – can constitute unlawful harassment based on sex/pregnancy.
-
To refuse to let a transgender employee use the restroom that corresponds with their gender identity constitutes unlawful harassment.
-
“Repeated and intentional” misnaming or misgendering of a transgender employee can constitute unlawful harassment based on gender identity.
-
Harassment based on “sex” includes harassment based on pregnancy or pregnancy-related conditions (including lactation, contraception, and abortion – either having one or not having one), sexual orientation, and gender identity.
-
Harassment against someone because of a mistaken belief that they belong to a certain protected group constitutes actionable harassment.
-
Harassing someone because they are closely associated with someone of a protected class constitutes actionable harassment. It also includes (“associational discrimination”: harassing a white employee because he is married to an Asian female).
-
Perceptions of conduct can change over time, and conduct that was initially dismissed as poor attempts at humor can but become unwelcome when they persist.
-
Accepting certain behavior from certain co-workers does not mean that similar behavior is not unwelcome when it comes from others.
-
A single request for a date, or one attempt at religious proselytization, may not be harassing, but repeated overtures at some point could create a hostile work environment.
-
On social media, the EEOC has taken the position that if an employee posts offensive material on his or her personal account but the post does not target co-workers, the post will not normally be considered harassing, even if co-workers see the post and are offended by it. On the other hand, if the employee’s offensive post does target particular co-workers, then it is likely to be considered harassing.
-
An employer should not presume guilt just because the alleged harasser is a member of a particular protected group. (In the case of a man accused of sexual harassment, the employer should not presume that the accused is guilty just because he is a man.)
This final Guidance includes a wealth of other good information, and a number of items that employers can incorporate into their worker training and investigation protocols.