Rubin Employment Law’s Post

Transcript

For the first time in 25 years, the Equal Employment Opportunity Commission, the federal agency that enforces federal laws against workplace discrimination, has updated its guidance to better address and prevent workplace harassment. So how does this affect your business? I'm Alex Rubin, owner of Ruben Employment Law. In this video, I'm going to explain six key changes to the EEOC guidance on workplace harassment and how you should implement them in your business. Please keep in mind this is general information, not legal advice, and the law may change at any time. Here are six key positions the EEOC has taken in its new workplace harassment guidance. Number one, color is a standalone protected characteristic under Title 7 of the Civil Rights Act. That's the federal law that prohibits discrimination on the basis of race, color, sex, religion and national origin. While color is sometimes related to race and national origin. Color based harassment due to an employees pigmentation, complexion or skin tone is independently protected. For example, if a supervisor harasses darker skinned black employees but not lighter skinned black employees, that would be colorism harassment. Change #2 to the guidance. Pregnancy, childbirth, and related medical conditions fall under sex as a protected characteristic under Title 7. Specifically, harassment related to breastfeeding, contraception, and abortion is unlawful if linked to the person's sex. Change #3 to the EEOC guidance. Sexual orientation and gender identity are also included within the protected characteristic of sex under Title 7. Here's some examples of what would be illegal conduct. Making epithets and physically assaulting an employee because of their sexual orientation or gender identity. Disclosing someone's sexual orientation or gender identity without their permission. Harassing an employee because they do not present themselves in a manner typically associated with their sex. Intentionally and repeatedly using a name or a pronoun inconsistent with an employees known gender identity and denying an employee access to a sex specific restroom or locker room consistent with their gender identity. The 4th change to the EEOC guidance on workplace harassment is that genetic information is a protected characteristic under the Genetic Information Nondiscrimination Act. Therefore, it is unlawful to harass and employee based on their or a family member's genetic testing or their family medical history. For example, it would be unlawful to harass an employee because they carry the bracket gene, which is linked to an increased risk of breast and ovarian cancer. The 5th change to the guidance is that intraclass harassment, which is harassment based on a protected characteristic conducted by a member of the same protected class, is prohibited under Title 7. So harassment of a female employee because of her gender by another female employee, that's prohibited by law. The 6th change is that harassing conduct that occurs online can create a hostile work environment. This includes conduct displayed through spoken or written words or images via an employers e-mail system electronic bulletin board. Instant messaging system, video conferencing technology, intranet, public website and social media accounts. This new guidance has already been challenged by the attorneys general of 18 states in a federal court in Tennessee. The lawsuit specifically focuses on the new gender identity rules, which the states claim the EEOC does not have the authority to create. While this guidance is not legally binding, it does serve as a resource for the courts, as well as EOC staff and staff of other agencies that investigate, adjudicate and litigate harassment claims. So what should employers do? Well, unless and until the federal judge in Tennessee issues a nationwide injunction prohibiting the EOC from enforcing this new guidance, the EEOC will apply it. So you should update your policies to include these new provisions and provide updated anti harassment training to your employees. In addition, check your state and local laws as they may already include these provisions. Trust me, following this new guidance will help you maintain a more productive workplace and also prevent costly and disruptive employee lawsuits. For more information about the new EEOC guidance on workplace harassment and how to implement it in your business, read our blog at alexrubinlaw.com/blog.