Controversial New EEOC Harassment Guidance in Effect

On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) issued its final Guidance on harassment in the workplace: "Enforcement Guidance on Harassment in the Workplace."  The EEOC says its new Guidance updates, consolidates and replaces the Agency's five Guidance documents issued between 1987 and 1999, and serves as a single, unified agency resource on EEOC-enforced workplace harassment law.  A third of all discrimination charges received by the EEOC include an allegation of harassment, based on race, sex, disability, or another protected characteristic.  A 2017 version of the Guidance was reportedly held up by the Trump Administration because of internal disagreements over LGBTQ+ worker protections and never finalized.  The final harassment Guidance was approved by a 3-2 vote on party lines on April 25, 2024, and one of the five-member panel's Republican commissioners addressed the legal challenges the new Guidance will face.  Litigation in federal courts in Texas has successfully challenged at least two EEOC initiatives, including a ruling in 2022 that invalidated certain guidance on workplace bathrooms, dress codes, and locker rooms for LGBTQ+ workers.  The U.S. Court of Appeals for the Fifth Circuit also blocked guidance on criminal background checks on the grounds that it comprised a "substantive rule" that the EEOC could not promulgate under Title VII.

The EEOC relied heavily on the Supreme Court ruling in Bostock, but technically Bostock "narrowly held" that firing an employee for being transgender violates Title VII, but the ruling did not address sex-segregated bathroom facilities or the "free speech" issue of pronoun usage at work.  The new guidance will be challenged by those who object on religious grounds to using pronouns another worker uses to fit that employee's gender identity.  Also, permitting bathroom use that aligns with gender identity might spark religious and other objections.

This article is part of our June 2024 Newsletter. 

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