ACLU Applauds EEOC Guidance on Workplace Harassment

WASHINGTON — Today, the U.S. Equal Employment Opportunity Commission (EEOC) announced the release of its final guidance on harassment in the workplace, providing much-needed clarity to courts, employers, and workers and ensuring on-the-job dignity and safety for millions of people.

“Given that the EEOC has not issued any comprehensive guidance about unlawful harassment since 1999, the guidance consolidates the agency’s past advisories with updates based on current legal precedent,” said Gillian Thomas, senior staff attorney with the ACLU’s Women’s Rights Project. “It also reflects the modern work world, where the #MeToo movement, overdue reckoning with our nation’s violent racist history, and recognition of LGBTQ people’s right to be free from workplace discrimination, among other developments, have brought harassment’s perniciousness into sharp relief.”

The new guidance admirably details the many forms that unlawful harassment may take, including harassment based on group-based stereotypes and workers’ multiple intersecting identities, and explains the robust protection mandated by our nation’s anti-discrimination laws – Title VII of the 1964 Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the newly-enacted Pregnant Workers’ Fairness Act, among others. Notably, it addresses the intentional misgendering of transgender employees and harassment based on a worker’s decision to have an abortion as forms of unlawful harassment. It also underscores that harassment based on sex-based hostility is equally unlawful as explicitly sexual abuse, and that harassment over social media may, when targeted at a particular worker, violate the law.

Many LGBTQ people live and work in localities that have adopted policies to undermine legal protections for them. In today’s final guidance, the EEOC rightly made clear that LGBTQ employees nationwide are protected from sex-based harassment at work under the Supreme Court’s 2020 decision in Bostock v. Clayton County, a case in which the ACLU was counsel. That recognition drew fire from one of the EEOC’s five commissioners, who took the unusual step of publicly noting her disagreement with the majority’s conclusion in the name of “women’s rights.”

“There is no conflict between demanding rights for women and for all transgender people,” said Ria Tabacco Mar, director of the ACLU’s Women’s Rights Project. “Attacking trans people does nothing to address the real problems women face. As feminists, we reject efforts to appropriate the rhetoric of ‘women’s rights’ to inflict harm on trans people, men or women.”

“We applaud the EEOC’s expansive explanation of the law’s anti-harassment protections. On-the-job abuse, particularly of our most vulnerable workers, remains rampant,” added Thomas. “The guidance provides employers with actionable insights to foster a culture of respect and inclusion, empowers employees to assert their rights, and instructs courts in how the nation’s foremost anti-discrimination enforcement agency interprets the law.”

The final guidance can be found here: https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace

The ACLU’s comment on the EEOC’s proposed guidance can be found here: https://www.aclu.org/wp-content/uploads/2023/12/20231101_ACLU_CommentSexualHarassmentGuidance_FINAL.pdf