In 2020, the U.S. Supreme Court held that employees who work at or apply for jobs with an employer that has at least 15 employees is protected under federal law against employment discrimination on the basis of sexual orientation or gender identity in Bostock v. Clayton County. The Supreme Court’s decision established that conduct of this kind is sex-based discrimination under Title VII.
In light of this decision, and the fact that the employment landscape has changed to include significant numbers of remote workers, the U.S. Equal Employment Opportunity Commission recently finalized enforcement guidance to put a fine point on just what constitutes workplace harassment in violation of discrimination law.
The new guidance incorporates the Bostock decision by including definitions of harassment based on sexual orientation and gender identity, which may include outing and mis-gendering individuals; denying access to bathrooms or other sex- segregated facilities; or making comments regarding an individual’s non-conforming appearance.
With a nod to the modern workforce, where employees often connect via video or other electronic means, EEOC guidance includes examples of conduct which can be considered harassment in the virtual environment such as sexist comments made during a video conference, ageist or ableism comments typed in a group chat, racist imagery visible in an employees workplace while on video, or any sexual innuendos made during a video based on the personal nature of an employee’s surroundings.
To aid employers in the prevention of discrimination in the workplace while providing employees with a road map to fight violations of the law, the recent EEOC guidance also includes examples of discrimination related to pregnancy, childbirth and related medical conditions including lactation, contraception, and abortion, as well as addressing race, disability and religious based harassment in the workplace. If you are a victim of workplace discrimination including harassment or retaliation for making a complaint, contact the employment discrimination attorneys of Alan Olson & Associates for immediate assistance at 262-785-9606.
