EEOC Harassment Guidance Shields LGBTQ+ Workers, Abortion Choice

Workplace harassment enforcement guidance newly released by the EEOC broadly protects LGBTQ+ employees’ rights in the workplace and clarifies the commission’s views that anti-bias laws cover employees’ abortion-related decisions.

These long-awaited draft guidelines from the Equal Employment Opportunity Commission will officially appear in the Federal Register for public comment Monday. They include instructions for employers to provide adequate anti-harassment policies, trainings, and complaint procedures and to train supervisors to recognize and report instances of harassment.

This is the EEOC’s second recent attempt to promulgate new harassment guidance. In 2017, the commission unanimously approved an earlier version, but it was reportedly held up by the Trump administration due to internal disagreements over LGBTQ+ worker protections and was never finalized.

“Since that time, some notable changes in society and the law have occurred, including the #MeToo movement going viral and issuance of new court decisions that required additional updates to the draft guidance,” EEOC Director of Communications Victor Chen said prior to the release of the new guidance.

In addition to protections based on race, national origin, and religion, the guidance protects employees against sex-based discrimination, including as it pertains to pregnancy and other “related medical conditions” such as a worker’s decisions regarding contraception or abortion.

It also includes provisions for LGBTQ+ worker protections against harassment. According to the guidance, harassment may range from physical assault to misgendering to denying access to a bathroom consistent with an individual’s gender identity.

The US Supreme Court’s June 2020 decision in Bostock v. Clayton County, Ga. held that Title VII of the 1964 Civil Rights Act’s prohibition on sex discrimination extends to bias based on sexual orientation and gender identity.

In a footnote, the new guidance said that “the Supreme Court’s reasoning in the decision logically extends to claims of harassment,” and courts have found post-Bostock that harassment claims based on sexual orientation or gender identity fall under Title VII.

The guidance also said that employers aren’t required to accommodate religious expression that creates, or reasonably threatens to create, a hostile work environment.

Shortly after the confirmation of Commissioner Kalpana Kotagal, which granted the EEOC a Democratic majority, EEOC Chair Charlotte Burrows indicated that finalizing harassment guidance was one of the agency’s top priorities.

If finalized, the guidance will supersede a number of guidance documents the agency released in the 1980s and 1990s. It is open for public comment for 30 days after publication in the Federal Register.