EEOC Addresses LGBTQ+ Harassment, Remote Work and More in New Guidance

Author: Emily Scace, Brightmine Senior Legal Editor

May 3, 2024

The Equal Employment Opportunity Commission (EEOC) has issued enforcement guidance that represents the first update to the agency's approach to workplace harassment in nearly 25 years.

The guidance responds to significant legal developments, such as the 2020 Supreme Court case Bostock v. Clayton County holding that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity.  It also reflects recent issues and emerging trends, such as the growth of remote work. Other newly addressed issues include intersectional harassment (harassment based on two or more protected characteristics) and harassment based on genetic information, including family medical history.

Although it is not legally binding and does not create new compliance obligations, the guidance offers a window into the EEOC's current perspective and priorities regarding workplace harassment.

"Harassment, both in-person and online, remains a serious issue in America's workplaces," said EEOC Chair Charlotte A. Burrows. "The EEOC's updated guidance on harassment is a comprehensive resource that brings together best practices for preventing and remedying harassment and clarifies recent developments in the law."  

More than a third of all discrimination charges received by the EEOC between 2016 and 2023 included an allegation of harassment.

LGBTQ+ protections

Although the Bostock decision in 2020 did not specifically address harassment, the guidance takes the position that its logic applies to workplace harassment as a particular form of discrimination. Specifically, the guidance states that the following conduct may constitute harassment based on sexual orientation or gender identity:

  • Epithets and slurs regarding sexual orientation or gender identity;
  • Physical assault;
  • Outing a person (i.e., disclosing their sexual orientation or gender identity without permission);
  • Harassment because a person does not present in a manner stereotypically associated with their sex;
  • Intentional and repeated use of a name or pronoun inconsistent with the person's known gender identity; and
  • Denial of access to a bathroom or other sex-segregated facility consistent with the person's gender identity.

Pregnancy and reproductive decision-making

According to the guidance, harassment based on pregnancy, childbirth or related medical conditions - including issues such as lactation, contraception choices and decisions regarding abortion - violates Title VII as a form of sex-based harassment. Examples of harassing conduct in this category could include:

  • Berating and making frequent negative comments about a pregnant employee's body;
  • Intentionally disturbing and making offensive comments to an employee who chooses to express milk in the workplace; and
  • Harassing an employee for seeking and using a reasonable accommodation for a pregnancy-related medical condition such as morning sickness.

Remote and virtual harassment

Harassment can take place virtually as well as within a physical work environment. The guidance explains that conduct occurring over an employer's communication systems - such as email, instant messaging, intranet, videoconferencing and social media - can constitute illegal harassment if it is sufficiently severe or pervasive and based on a protected characteristic. For example, distributing intimate images (either real or computer-generated) of an individual without their consent could contribute to a hostile work environment if it impacts the workplace, the guidance notes.

Even outside-of-work electronic communications can contribute to workplace harassment, according to the guidance. For example, if an employee posts race-based insults and epithets about a coworker on a personal social media account, and the coworker sees or learns about the post, the social media communication could contribute to a hostile work environment.