On Monday, the U.S. Equal Employment Opportunity Commission declared that employers who refuse to use transgender workers’ preferred pronouns and prevent them from using bathrooms aligned with their gender identity are engaging in unlawful workplace harassment under federal anti-discrimination law.
This update marks the first revision of the commission’s enforcement guidance on workplace harassment in 25 years, reflecting the Supreme Court’s landmark ruling that anti-bias laws extend to LGBTQ workers, following a previous attempt stalled during the Trump administration.
In addition to addressing the rise of remote work, the new guidance asserts that discriminating against employees based on their decisions to have abortions or use contraception constitutes sex discrimination. Although not legally binding, the guidance provides a framework for the EEOC’s enforcement of anti-bias laws and can serve as supporting evidence in legal arguments.
While some Republicans, conservative groups, and religious organizations criticized the comprehensive guidance, arguing that it conflicts with state laws and religious exemptions to anti-discrimination laws, EEOC Chair Charlotte Burrows emphasized the necessity of updating the guidance to ensure employers are aware of their legal obligations.
The Democrat-led commission approved the guidance in a 3-2 vote on Friday, with Republican Commissioners Andrea Lucas and Keith Sonderling dissenting.
Concerns raised
Lucas expressed concerns that the guidance could lead many employers to eliminate single-sex bathrooms and facilities, potentially exposing women to increased risks of harassment and assault. She emphasized the biological binary of sex and its significance, stating, “Biological sex is real, and it matters. Sex is binary (male and female) and is immutable.”
The commission highlighted that more than one-third of the hundreds of thousands of worker complaints received between 2016 and 2023 included allegations of harassment. Recent high-profile lawsuits filed by the EEOC against Walmart Inc and Tesla Inc have underscored the prevalence of harassment in the workplace.
The guidance, which covers various topics related to workplace harassment, reflects significant legal developments over the last quarter-century, including the Supreme Court’s ruling in Bostock v. Clayton County.
This decision established that workplace discrimination based on sexual orientation or gender identity constitutes unlawful sex bias. The commission clarified that this reasoning extends to cases alleging harassment of LGBTQ workers.
Furthermore, the guidance addresses harassment in virtual work environments, highlighting that conduct within such settings, such as racist or sexist comments made during video meetings, can contribute to an unlawful hostile work environment.
Additionally, the commission emphasized that conduct outside of work, including employees’ posts on personal social media pages, can constitute illegal harassment if it affects an employee’s working conditions.
