Title VII of the Civil Rights Act of 1964 was passed to protect employees and set guidelines for employers to treat employees fairly. These guidelines provide that employers may not discriminate against an employee or job applicant based on their race, religion, sex, national origin, or color. Upon the establishment of Title VII, the Equal Employment Opportunity Commission (“EEOC”) was created to enforce civil rights laws against such discrimination.
What is the EEOC’s Recent Guidance?
On April 29, 2024, the EEOC released a new guidance for employers titled the Enforcement Guidance on Harassment in the Workplace. This guidance provides additional guidelines specific to discrimination based on “sex.”
What is Discrimination Based on “Sex”?
“Sex” is a protected class under Title VII, which includes pregnancy, childbirth, and related medical conditions and sexual orientation and gender identity. Under the new guidance, sex-based discrimination may be based on one, or more, of the three categories: (1) harassing conduct of a sexualized nature, (2) pregnancy, childbirth, or related medical conditions, or (3) sexual orientation and gender identity.
Harassing Conduct of a Sexualized Nature
Harassing conduct based on sex includes conduct of a sexualized nature, such as unwanted sexual conduct; sexual attention or coercion; rape, sexual assault or violence; discussing or displaying sexual acts; or non-sexual conduct based on sex, such as sex-based epithets, sexist comments, sex-neutral but offensive conduct motivated by sex, etc.
Pregnancy, Childbirth, or Related Medical Conditions
Harassing conduct based on pregnancy, childbirth, or related conditions include issues such as lactation, the use of contraception, or decisions on abortion. Such conduct is generally covered under Title VII if it is linked to a targeted individual’s sex, including pregnancy, childbirth, or related medical conditions.
Sexual Orientation and Gender Identity
Harassing conduct based on sexual orientation and gender identity includes how that identity is expressed, epithets regarding sexual orientation or gender identity, physical assault due to sexual orientation or gender identity, outing, harassment for non-conforming identity expression, misgendering, or denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.
What Should Employers Be Aware of After the Release of the New Guidelines?
- Harassment in a Virtual Workplace
Sex-based harassing conduct is not limited to in-person work. Virtual harassment based on conduct of a sexualized nature; pregnancy, childbirth, or related medical conditions; or sexual orientation and gender identity may occur during remote work, including situations of harassment in a virtual meeting, email, or group chat. For example, harassment in a virtual workplace may include:
- Harassing comments about an employee’s pregnancy and the employer’s decision to allow the employee to work from home.
- An employee emailing sex-based harassing messages to another employee.
- An employee making sex-based harassing comments about another employee in a work group chat.
- Sexist imagery that is visible in an employee’s workspace during a virtual meeting.
- Harassment Based on Misgendering and Outing
Sex-based harassing conduct includes the repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender, also known as “misgendering,” or disclosing an individual’s sexual orientation or gender identity without their permission, also known as “outing.” For example, harassment may include:
- Repeatedly referring to a coworker who identifies with the pronouns he/him as she/her pronouns, with the intent of misgendering.
- Disclosing to coworker A, without the consent of coworker B, that coworker B is transgender.
- Disclosing to coworker A, without the consent of coworker B, coworker B’s sexual orientation.
- Forcing an employee who identifies with the pronouns she/her to use the male designated restroom with the intent of outing the employee.
- Repeated mocking of a coworker who identifies with the pronouns he/him for wearing “feminine” clothing to work.
- Harassment Based on Denial of Bathroom and Other Sex-Segregated Facilities
Sex-based harassing conduct includes the denial of bathrooms and other sex-segregated facilities. For example, harassment may include:
- Forcing an employee who identifies with the pronouns he/him to use the women designated restroom.
- Refusing access to the women’s restroom to an employee who identifies with the pronouns she/her because they are transgender.
- Denying an employee who identifies with the pronouns she/her access to a women designated lactation room because they are transgender.
Guidance
Illinois employees that have been discriminated against based on “sex” are advised to reach out to an employment law attorney for assistance regarding this guidance. At Reno & Zahm, we are proud to represent individuals and businesses in Northern Illinois for over 100 years. Our professionals regularly counsel clients on a large variety of employment matters, including discrimination matters. Contact us today at (815) 987-4050 to schedule a consultation.
This posting is for informational purposes only and is not intended to be legal advice. As the facts and circumstance of each employer are unique, the information provide herein should not be used or relied upon without first consulting a lawyer.