E EEOC’s Updated Guidance on WORKPLACE HARASSMENT PREGNANCY, BATHROOMS, MISGENDERING AND MORE BY DEBRA A. MASTRIAN, AMUNDSEN DAVIS LLC Employers have an affirmative legal obligation under federal and state employment discrimination laws to provide a workplace free from unlawful harassment. Not all harassment is illegal. Unlawful harassment is harassment on the basis of any protected characteristic, including race, color, sex, religion, disability, national origin, gender identity, sexual orientation, age, etc. The harassment must be severe or pervasive in order to rise to the level of a hostile working environment. Courts use both an objective and subjective test to determine whether a work environment is hostile. The employee’s subjective beliefs alone will not suffice. The work environment must be such that a reasonable person would find it hostile or abusive. Courts look at the frequency of the discriminatory conduct, its severity, whether it is physically threatening and whether the conduct unreasonably interfered with the employee’s work performance. Harassment can take many forms, including physical, verbal, written or visual conduct (e.g., unwanted physical contact, posting offensive pictures, using slurs or derogatory terms, telling offensive jokes, sending emails or posting offensive comments). In April, the U.S. Equal Employment Opportunity Commission issued its long-awaited “Enforcement Guidance on Harassment in the Workplace”1 which intended to encompass practical and legal developments from the past two decades. Practical developments include the use of technology (email, Zoom, artificial intelligence) and telecommuting (hybrid or remote work arrangements). Legal developments include the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County,2 in which the Court ruled that employees are protected against discrimination because of gender identity or sexual orientation, the Pregnant Workers Fairness Act and Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). The Guidance provides numerous examples of what may constitute unlawful harassment. The following points are some of the key takeaways from the Guidance: ▶ Sex-based harassment prohibited under Title VII of the Civil Rights Act of 1964 includes pregnancy, childbirth or related medical conditions. This includes issues such as lactation, morning sickness, use of contraceptives and whether or not to have an abortion. The examples provided by the EEOC include a coworker making negative comments about a pregnant employee who has received accommodations (work from home part-time and a flex schedule) for her morning sickness or negative comments about a female employee who is expressing breast milk in a private room at work or other inappropriate conduct such as intentionally disrupting the nursing breaks or faking intent to enter the room while she is pumping her breast milk. ▶ Sex-based harassment prohibited under Title VII includes harassment based on sexual orientation or gender identity. Harassing conduct can include outing (disclosure of a person’s sexual orientation or gender identity without HUMAN RESOURCES 54 HOOSIERBANKER
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