©2025 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2025 EDITION | 34 33 | EEOC-INITIATED LITIGATION: 2025 EDITION ©2025 Seyfarth Shaw LLP disability, or an individual or family member’s genetic test or family medical history.86 Further, the Enforcement Guidance specifically sets forth the EEOC’s position that as a protected basis “sex” includes, but is not limited to, pregnancy, childbirth, or related medical conditions.87 Moreover, the EEOC announced that it will even entertain harassment claims based on (1) “perceived” membership in a protected class (even if the perception is incorrect),88 (2) for “associational harassment,” where an employee who is a member of a protected class claims harassment based on his/her association with individuals who do not share their protected characteristics; 89 (3) where the alleged harassment was not directed at the employee; 90 and (4) in instances where the alleged harassment occurred outside of the workplace.91 The Enforcement Guidance is the EEOC’s first published guidance document in over two decades. While parts of the 2024 guidance are largely noncontroversial (for example, it is widely understood that epithets based on a protected class can serve as the basis for a harassment claim), the Enforcement Guidance treads some new ground. Some of the key new additions include: • Pregnancy, Childbirth, or Related Medical Conditions: Sex based harassment based on pregnancy, childbirth, or related medical conditions “can include issues such as lactation; using or not using contraception; or deciding to have, or not to have, an abortion, if that harassment is linked to a targeted individual’s sex.” 92 Examples provided include: – (1) Scrutinizing a pregnant woman’s bathroom usage; (2) Interfering with and making inappropriate comments about a woman’s use of a lactation room; and (3) Complaints about pregnant women always getting “special perks.” 93 • Sexual Orientation and Gender Identity: Discrimination based on sexual orientation or gender identity includes physical assault, “outing,” or other harassing conduct toward individuals because they “do not present in a manner that would stereotypically be associated with that person’s sex.” 94 – Harassing behavior under this covered basis includes the repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering), or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.95 86 Id. At 9-21. 87 Id; see Walsh v. Nat’l Computer Sys., Inc., 332 F.3d 1150, 1160 (8th Cir. 2003)(upholding jury verdict finding the plaintiff was subjected to a hostile work environment based on pregnancy where the plaintiff’s supervisor made numerous derogatory comments about her pregnancy and required the plaintiff to provide advance notice and documentation of doctor’s appointments, even though the plaintiff’s coworkers were not required to provide such information for appointments); 42 U.S.C. § 2000e(k) (“The terms of ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions . . . .”); Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1747 (2020); Sch. Of the Ozarks, Inc. v. Biden, 41 F.4th 992, 995 (8th Cir. 2022)(“Bostock held that the statute’s prohibition on employment discrimination ‘because of sex’ encompasses discrimination on the basis of sexual orientation and gender identity.”) 88 See, e.g., Jones v. UPS Ground Freight, 683 F.3d 1283, 1299 (11th Cir. 2012)(‘[A] harasser’s use of epithets associated with a different ethnic or racial minority than the plaintiff will not necessarily shield an employer from liability for a hostile work environment.”); EEOC v. WC&M Enters., Inc., 496 F.3d 393, 401-02 (5th Cir. 2007) (concluding that the EEOC presented sufficient evidence to support its national origin harassment claim where coworkers repeatedly referred to an employee of Indian descent as “Taliban” or “Arab” and stated that “[t]his is America . . . not the Islamic country where you came from,” even though the harassing comments did not accurately describe the employee’s actual country of origin.) 89 See e.g., Frith v. Whole Foods Mkt., Inc., 38 F.4th 263 (1st Cir. 2022)(concluding that claims alleging discrimination based on interracial association “are fundamentally consistent with Bostock [v. Clayton County, 140 S. Ct. 1731 (2020)] and Title VII’s plain language prohibiting action ‘because of such individual []’ plaintiff’s race”). Barrett v. Whirlpool Corp., 556 F.3d 502, 512 (6th Cir. 2009) (holding that white employees could allege claim of racial harassment based on their friendship with and advocacy on behalf of African American coworkers). 90 See e.g., Ellis v. Houston, 742 F.3d 307, 320-21 (8th Cir. 2014) (concluding that the District Court erred in evaluating plaintiffs’ section 1981 and section 1983 claims of racial harassment by examining in isolation harassment personally experienced by each plaintiff, rather than also considering conduct directed at others, where every plaintiff did not hear every remark, but each plaintiff became aware of all of the conduct). 91 U.S. Equal Employment Opportunity Commission, Enforcement Guidance on Unlawful Harassment in the Workplace, see supra note 1, at 57. 92 U.S. Equal Employment Opportunity Commission, Enforcement Guidance on Unlawful Harassment in the Workplace, see supra note 1, at 15. 93 Id. at 16. 94 Id. at 17. 95 Id. • Harassment in Virtual Work Environments: As with conduct within a physical work environment, conduct within a virtual work environment can contribute to a hostile work environment. This can include, for instance: – Sexist comments made during a video meeting; (2) Racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting; and (3) Sexual comments made during a video meeting about a bed being near an employee in the video image.96 • Scope of Hostile Work Environment Claims: Conduct that can affect the terms and conditions of employment, even though it does not occur in a work related context, includes electronic communications using private phones, computers, or social media accounts, if it impacts the workplace.97 – Given the proliferation of digital technology, it is increasingly likely that the non-consensual distribution of real or computer generated intimate images using social media can contribute to a hostile work environment, if it impacts the workplace.98 The EEOC provides employers with what it views as a practical toolkit to prevent and correct harassment in the workplace using effective anti-harassment policies and training programs. In regards to employer antiharassment policies, the Enforcement Guidance encourages employers to: (1) clearly identify accessible points of contact to whom reports of harassment should be made and include contact information, and (2) explain the employer’s complaint process, including the process’s anti-retaliation and confidentiality protections.99 The Guidance also lays out several features that anti-harassment trainings should include to maximize their effectiveness: • It explains the employer’s anti-harassment policy and complaint process, including any ADR process, and confidentiality and anti-retaliation protections; • It describes and provides examples of prohibited conduct that, if left unchecked, might rise to the level of prohibited harassment; • It provides information about employees’ rights if they experience, observe, become aware of, or report conduct that they believe may be prohibited; • It provides supervisors and managers information about how to prevent, identify, stop, report, and correct harassment, such as actions that can be taken to minimize the risk of harassment, and clear instructions for addressing and reporting harassment that they observe, that is reported to them, or that they otherwise become aware of. 100 Under the Enforcement Guidance, employers will face the challenge of balancing conflicting guidance. The EEOC’s requirement that employers act on out-of-work conduct that creates a hostile work environment is in apparent conflict with the National Labor Relations Board (“NLRB”) August 2023 decision requiring that employers take care not to place impermissible restrictions on employee speech, including out-of-work speech on social media.101 Employers must also juggle the EEOC’s mandate that they “must take corrective action that is ‘reasonably calculated to prevent further harassment’” (emphasis added) with the NLRB’s May 2023 decision prohibiting employers from disciplining employees for certain harassing conduct that 96 U.S. Equal Employment Opportunity Commission, Enforcement Guidance on Harassment in the Workplace, at 53. 97 Id. at 54. 98 Id. at 55. 99 Id. at 66. 100 U.S. Equal Employment Opportunity Commission, Enforcement Guidance on Harassment in the Workplace, at 67. 101 Stericycle, Inc., and Teamsters Local 628, 372 NLRB No. 113 (2023) (holding that a facially neutral work rule is presumptively unlawful if a “reasonable” employee predisposed to engaging in protected concerted activity could interpret the rule to have a coercive meaning.”).
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