On September 29, 2023, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued enforcement guidance on workplace harassment consistent with recent case law and enforcement prerogatives of the EEOC dating back several years.
Before I address this updated EEOC Guidance, an employer might ask “is this guidance binding as would a statute or court decision?” The short answer is “no.” However, there is reason to read on. While not technically binding on the courts, the courts simply do not disregard it. One court has stated that EEOC's guidelines “are not controlling upon the courts by reason of their authority, but they do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Indeed the U.S. Supreme Court has added “while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” In sum, the EEOC Guidance remains just that - mere guidance - until a court agrees with that guidance and imbues it with the force of law.
The focus of the EEOC’s new guidance covers (i) LGBTQ+ issues in the workplace; (ii) clarifying how far religious accommodations can go when in competition with other EEOC priorities; (iii) employee’s personal online posts on social media accounts; (iv) issues now present due to remote work realties, and; (v) protecting employee’s “Reproductive rights.”
For example, the guidance addresses “misgendering” in the work place. It is clear that refusing to use a name or pronoun “consistent with the individual’s gender identity” may constitute harassment. Likewise, and almost axiomatic, an employer could be accused of sex-based harassment if it refuses to permit an employee to use a bathroom that matches their gender identity.
For those with religious objections to the ever-changing focus on transgender rights in the workplace, employees are entitled to seek “religious accommodations.” However, those beliefs cannot include permitting an employee with accommodations that tend to create a “hostile work environment” for an LGBTQ+ co-worker. Some may view this as nothing more than a “Hobson’s choice.”
Moreover, from the EEOC’s standpoint, an employer may be obligated to deal with an employee’s social media accounts in regard to online harassment. If the employer is somehow put on notice of one employee’s online conduct that another employee finds objectionable - even if not directly related to the workplace - the employer may need to take remedial steps or disciplinary action against the offending employee for their fellow employee’s non-workplace and non-worktime conduct.
As for teleconferencing, now part of the fabric of remote work in this country, the guidance makes it plainly clear that conduct within a virtual work environment can contribute to a hostile work environment. Examples are difficult to come by that would not be otherwise obvious, but the short answer is: regardless of whether the employee is remote or not, employees should treat every interaction with their colleagues as if they were in each other’s presence in the workplace.
Finally, with abortion being a very hot political/social topic, the EEOC wants to reinforce the point that mistreatment based on an employee’s pregnancy and reproductive decisions, such as decisions about contraception or abortion, can expose an employer to potential liability. Indeed, the EEOC has always held that the termination of a pregnancy is no different than pregnancy that goes full term and both are conditions protected under the law. Unquestionably, any discussion regarding abortion should be off limits in the workplace.
In sum, in the New York area, between new N.Y. State laws and N.Y. City laws and ever-expanding federal protections, keeping your workplace free from complaints and ensuing litigation is a daunting task. Vigilance and knowledge of what the law expects of you is paramount.
The Employment Law practice at Meyer, Suozzi, English & Klein, P.C. deals with internal investigations, employment contracts, severance agreements, employee benefits, employee handbooks, leaves of absence, privacy issues, wrongful discharge, discrimination claims and sexual harassment claims, restrictive covenants, disability matters and breaches of contract. Our attorneys litigate, mediate and arbitrate employment-related claims in Federal, State and administrative forums.