Workplace discrimination claims are on the rise. The U.S. Equal Employment Opportunity Commission (EEOC) reports a 50% increase in employment discrimination lawsuits between fiscal years 2022 and 2023 alone. Now more than ever employers should be aware of what conduct constitutes discrimination, how to manage complaints of discrimination, and how to proactively prevent discrimination from permeating into the workplace.

In an effort to assist employers and employees alike with preventing workplace harassment and assessing discrimination claims, the EEOC published new guidance this year titled “Enforcement Guidance on Harassment in the Workplace.” This new guidance touches on a wide variety of workplace harassment and discrimination claims, but primarily focuses on discrimination and harassment of LGBTQ+ Workers. This Guidance builds off the US Supreme Court’s 2020 decision in Bostock v. Clayton, which held that employment discrimination on the basis of sexual orientation and gender identity is a violation of Title VII.

According to the EEOC Guidance, harassment based on gender identity may include, but is not limited to:

  • Offensive and derogatory remarks regarding an employee’s transgender status, gender identity, gender expression or non-conformance to gender stereotypes, or gender transition.
  • Intentional and repeated misgendering of an employee.
  • Denying an employee the ability to access the bathroom consistent with the employee’s gender identity.
  • Gender identity discrimination includes refusing to hire an individual based on the applicant’s gender identity, firing an employee for announcing plans to transition or change pronouns, or requiring employees to appear at work as the gender they were assigned at birth.
  • Disclosing an employee’s sexual orientation or gender identity without permission from the employee to do so.

Looking into the future, the EEOC Guidance anticipates potential challenges, particularly those based on religious discrimination grounds. The EEOC notes that while sincere religious beliefs should be respected, employers are not required to uphold religious expression that “creates or reasonably threatens to create, a hostile work environment.

The EEOC’s guidance is not the law, but it does give light to how the commission will be interpreting harassment cases that are brought to the agency. Courts also regularly rely on EEOC guidance when assessing discrimination and harassment claims. Accordingly, it is imperative that employers review this new guidance and assess their workplaces for compliance with these new enforcement standards to avoid unnecessary litigation and to promote a non-discriminatory workplace.

The attorneys at Fishel Downey regularly advise employers on policies and claims relating to employee discrimination and harassment. If you have a specific question or scenario and would like assistance, contact the attorneys at Fishel Downey Albrecht & Riepenhoff LLC at 614-221-1216.