October 02, 2023

EEOC Publishes Proposed Enforcement Guidance on Workplace Harassment

On September 29th, the U.S. Equal Employment Opportunity Commission announced its invitation invited for public comment on its proposed “Enforcement Guidance on Harassment in the Workplace.

After the Introduction, the 144-page proposed Guidance addresses: (1) Covered Bases and Causation; (2) Harassment Resulting in Discrimination with Respect to a Term, Condition, or Privilege of Employment; (3) Liability; and (4) Systemic Harassment. The final version will supersede four prior Guidances & the Commission’s Compliance Manual.

Some current issues addressed include and are not limited to:

    • Misgendering – the intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity.
    • Access – denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.
    • Off-duty conduct – including an employee’s use of private or the employer’s social media account (mentioned at least eight times) or other electronic communications.
    • Balancing – Special consideration when balancing anti-harassment and accommodation obligations with respect to religious expression.
    • Joint liability – such as when a temporary employment agency assigns an individual to work for a client employer and the individual is harassed at the client’s worksite.

The deadline to submit comments is 11:59 p.m. ET on Wednesday, November 1st. For more information, feel free to access FiveL’s FREE archived webcast that covers highlights of the U.S. Department of Labor’s overtime rule, and this proposed Guidance. This 90-minute webcast is pre-approved by SHRM for 1.5 credit hours and by HRCI for 1.5 business credit hours.