EEOC Releases New Enforcement Guidance for the First Time Since 1999

The U.S. Equal Employment Opportunity Commission (“EEOC”) finalized Enforcement Guidance for the first time since 1999(!!). Enforcement Guidance provides official agency policy and explains how laws and regulations apply to common workplace situations.

Not surprisingly, the workplace has changed a lot over the last 25 years so the guidance is, we’ll say, overdue…

I’ve yet to deep dive the guidance, but here are some highlights:?

The Guidance incorporates the SCOTUS Bostock decision through its inclusion of definitions of harassment based on sexual orientation and gender identity, noting that harassment can include “outing” individuals, misgendering, pestering related to gender-nonconforming appearance and bathroom access denial.?

The guidance also touches on harassment related to pregnancy, childbirth and related medical conditions — including lactation, using (or not using) contraception and choosing to have (or not have) an abortion — as well as genetic information.??

The EEOC first proposed the Guidance last October - more than five years after first announcing the Guidance was in the works. It received about 38,000 comments, and despite “carefully considering” them in the development of their final guidance, the EEOC retained the vast majority of the guidance structure proposed in October. The Guidance retained the proposed characteristics protected by EEO laws; methods of establishing when causation can be determined; exploring when harassment affects a term, condition or privilege of employment; and examining employer liability.?

A few changes, however, include providing a miscellany of examples of harassment and explaining more thoroughly how a hostile work environment can be determined based on the totality of circumstances.?

While I’ll handle the Guidance deep-dive and provide more practical advice on compliance in the next few weeks, this summary of key provisions and small business fact sheet are helpful overviews.?

Stay tuned,?

Jessica