In January, the Equal Employment Opportunity Commission (“EEOC”), the federal agency charged with enforcing anti-discrimination laws, issued proposed new harassment guidance seeking input from the public. The public comment period ended March 21, 2017.
One big take away from the Guidance is that it is the EEOC’s position that discrimination and harassment based on sexual orientation and gender identity is prohibited by federal law. This news is not earth-shattering because the EEOC has long held this position. However, to date, Federal Courts of Appeal who have addressed this issue have disagreed. Alternatively, states have long held that gender identity and sexual orientation are protected characteristics. Therefore, employers must be mindful of the relevant laws in their respective states.
Additionally, the guidance provides many examples of unlawful conduct. It is not focused solely on sexual harassment but also on any harassment related to a protected class, such as race or religion.
It is unclear when the Guidance will become final. However, employers should be mindful of the proposed guidance, as investigators will likely use the proposed guidance as a basis for investigating EEOC charges. We will keep you posted as the guidance works its way through the process to becoming final.