- Be mindful of gender identity. The U.S. Equal Employment Opportunity Commission’s updated workplace harassment enforcement guidance includes a heightened focus on the rights of transgender workers.
- Guidance is 25 years in the making. The new guidance modifies, consolidates and replaces the agency’s five prior guidance documents, issued between 1987 and 1999.
- Act to avert litigation. Legal experts expect the EEOC to take a strong enforcement stance, along the lines of “employers, you have been warned.”
For the first time in 25 years, the U.S. Equal Employment Opportunity Commission (EEOC) has updated its workplace harassment enforcement guidance, which now includes a specific focus on the rights of transgender workers.
Within its revised guidelines, issued on April 29, the EEOC outlined that employers who refuse to use transgender workers’ preferred pronouns and/or bar them from using bathrooms that match their gender identity are committing unlawful workplace harassment acts under federal anti-discrimination law.
The EEOC stated in an April 29 press release that since it last issued guidance on workplace harassment more than two decades ago, notable law changes have occurred — mainly the Supreme Court’s decision in Bostock v. Clayton County. In that 2020 case, the Court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination based on sexuality or gender identity.
The EEOC reported that the new guidance modifies, consolidates and replaces the agency’s five guidance documents issued between 1987 and 1999, and now serves as a single, unified agency resource on EEOC-enforced workplace harassment law. It also said the guidance reflects the commission’s consideration of “robust public input” received during the public commentary period in the fall of 2023.
‘Employers, You Have Been Warned’
The EEOC explained in its press release that between fiscal years 2016 and 2023, more than one-third of all discrimination charges received by the commission included an allegation of harassment based on race, sex, disability or another characteristic covered by the laws enforced by the agency.
Chris DeGroff, a labor and employment partner at the Seyfarth law firm, said the good news for HR and total rewards professionals is the guidance’s basic concepts on ways to address sexual harassment are not revolutionary.
“Most of the positions the EEOC has taken in the guidance follow its messaging going back years,” he said, adding that, in his opinion, the biggest impact is the increased attention the agency will be paying to sexual harassment cases in 2024 and beyond.
“The EEOC has historically followed up guidance of this scope and magnitude with a very strong enforcement stance,” DeGroff said. “Employers can expect aggressive administrative investigations and an increase in EEOC-initiated litigation activity on this topic.”
DeGroff stated the EEOC’s stance will likely be along the lines of: “Employers, you have been warned.”
“The EEOC publicly and privately expresses that it expects executives will lead from the front on this, and a lukewarm embrace of harassment-related topics could make an employer a litigation target,” he said.
Encouraging organizational strategies where EEO policies — including anti-harassment policies — are “baked in” to day-to-day operations is a powerful way to steer clear of the EEOC’s radar, DeGroff advised.
Update Policies and Pursue Assessment and Communication
Rachel See, senior counsel for labor and employment at Seyfarth, explained the EEOC’s guidance on misgendering and bathroom access repeats and expounds upon concepts the agency first articulated back in 2015.
“The new guidance clarifies how harassing conduct based on sexual orientation or gender identity includes outing, misgendering or denying access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity,” she said.
Stacey Chiu, a senior associate in the Labor and Employment Practice Group at law firm Michelman & Robinson, said in light of the changes, employers should consider revising their anti-harassment policies to explicitly include gender identity as a protected characteristic and updating any formal harassment training materials to address gender identity inclusivity.
On the aspect of training, DeGroff advised employers to create certainty around whether their workers “know what harassment is” and how to report it. Also, he said employers should consider training managers and HR teams on the organizational importance of these issues and on the tools these leaders have at their disposal.
“Beyond this, however, there are additional measures employers can implement to prevent gender-identity related harassment in the workplace,” Chiu said, noting this may include updating dress codes to ensure they are inclusive of all gender identities, such as allowing employees to dress in a manner consistent with their gender identity.
For remote work settings, Chiu said employers can facilitate gender identity inclusivity by allowing employees to add their preferred names and pronouns to email signatures, internal profiles and profiles for communication tools.
“These measures and others can help create a respectful and supportive work environment for all employees,” she said.
DeGroff added that organizational assessment can help managers and HR professionals mitigate workplace harassment risk and comply with the new guidance. “While one-off incidents are regrettably part of almost any employment operation, systemic issues involving multiple claimants or a long history of complaints are [particularly] bad for employee morale, bad for business and a sure-fire way of earning intense scrutiny from agencies like the EEOC,” DeGroff said. To address this, he advised initiating “thoughtful” assessments of such incidents and issues to examine and identify “when, where and why complaints arise.”
Editor’s Note: Additional Content
For more information and resources related to this article, see the pages below, which offer quick access to all WorldatWork content on these topics:
Our library includes additional total rewards articles on transgender workers, including:
- Increasing Inclusion: Survey Finds Transgender Benefits Trending Upward
- Taking Progressive Steps in Gender-Inclusive Benefits (available to members only)
- Bullying & Sexually Marginalized Workers: A Threat to the Employee Value Proposition (available to members only)
