New EEOC Anti-Harassment Guidelines Bolster Safeguards for LGBTQ+ Employees in the Workplace

The Equal Employment Opportunity Commission (EEOC) announced new guidelines that strengthen protections for LGBTQ+ employees. On April 29, the EEOC said that it is unlawful workplace harassment for employers to refuse using the preferred pronouns of transgender employees and stop them from using bathrooms fitting with their gender identity. While not binding, these rules give a framework for the EEOC’s enforcement of anti-discrimination laws.

This update marks the EEOC’s second effort to revise its anti-harassment guidelines. An attempt to update them in 2017 was stalled due to internal disputes. The new guidelines explicitly combine safeguards for transgender employees. When the EEOC released its draft in September, it was met initially with criticism. Religious-affiliated groups argued the advice would unreasonably infringe upon the religious exemption from federal anti-discrimination laws. Free speech advocates asserted the guidelines would unduly encroach on the First Amendment or amount to compelled speech. Despite these comments, EEOC Chair Charlotte Burrows said the advice merely incorporates decades of judicial decisions.

In its guidelines, the EEOC references the U.S. Supreme Court’s June 2020 ruling in Bostock v. Clayton County, 590 U.S. 644 (2020), which deemed that Title VII’s ban on sex discrimination covers discrimination based on sexual orientation and gender identity. A footnote in the draft points out that “the Supreme Court’s rationale in the decision naturally extends to harassment claims.”

The guidelines include the Bostock ruling by defining harassment to include behaviors such as:

• Outing individuals
• Misgendering
• Pestering related to a gender-nonconforming appearance and
• Denying a person access to a bathroom or other sex-segregated facility consistent with their gender identity.

Some critics contend the EEOC exceeded its statutory authority under Title VII since the guidance exceeds the scope of Title VII as the Supreme Court interpreted it in Bostock. They state the decision in Bostock was limited in scope and did not address, among other things, sex-segregated bathrooms. The EEOC noted that while Bostock did not explicitly address bathrooms and other sex-segregated facilities, the EEOC may determine whether certain behaviors go against Title VII, absent direct guidance from Supreme Court precedents. In fulfilling its statutory duties, the EEOC argued it reviews applicable legal authority and arguments from affected parties when it decides if a violation has taken place in the context of a distinct charge or federal sector appeal.

By formalizing these guidelines, the EEOC aims to provide employers with clear direction on how to make workplaces inclusive. Yet, the new guidelines are also rife with legal implications for employers. Title VII requires that employers accommodate sincerely held religious beliefs, practices, and observances. At the same time, employers need to protect workers against unlawful harassment, including harassment induced by religion or created by religious expression. With this in mind, the EEOC mandates that employers accommodate an employee’s sincerely held religious practice of engaging in religious expression in the workplace, unless doing so creates, or reasonably threatens to create a hostile work environment.

Employers must keep in mind the interplay between freedom of speech protection and statutory harassment prohibitions. The EEOC guidance clarifies that not all talk about sensitive topics like religion, abortion, or gender identity create harassment. Such behavior is only thought unlawful when it amounts to a hostile work environment.

Further, speech made outside work — particularly on social media websites — generally will not impact the workplace and therefore will not add to a hostile work environment, according to the EEOC.

Employers should hew closely to the updated guidelines and, if needed, revise their current policies and training programs.

Please contact Helen Jay or any member of Phelps’ Labor and Employment team with questions or for advice and guidance.