EEOC providing long-overdue enforcement guidance

The United States Equal Employment Opportunity Commission (“EEOC”) recently issued proposed guidance for enforcement of anti-harassment and anti-discrimination protections under Title VII, the civil rights statute governing employers across the country. The enforcement guidance, which should have been updated and implemented years ago, was blocked for political reasons by the prior Federal administration.

While issuing the proposed enforcement guidance, the EEOC publicly announced that the agency’s action “reflects notable changes in law, including the Supreme Court’s decision in Bostock v. Clayton County, the #MeToo movement, and emerging issues, such as virtual or online harassment.” To that end, the EEOC’s updated enforcement guidance confirms that Title VII prohibits discrimination against employees who identify as lesbian, gay, bisexual, or transgender. In addition, the EEOC emphasized that Title VII’s prohibition against sex discrimination covers disparate treatment based on pregnancy, childbirth, medical conditions related to pregnancy or childbirth, and abortion-related decisions. Given the dramatic escalation of online activity, in general, and social media usage, in particular, the proposed enforcement guidance also makes clear that conduct “within a virtual work environment” or online conduct that occurs on personal social media pages can contribute to a hostile work environment and, consequently, trigger a successful harassment claim.

The EEOC’s proposed action remains open for public comment until November 1, 2023. If adopted as is, the EEOC’s enforcement guidance will not only enhance enforcement of anti-harassment and anti-discrimination protections under Federal law, the guidance should also bolster efforts under State laws like the Minnesota Human Rights Act. Under such circumstances, people subjected to illegal harassment or other types of discrimination will likely have more success prosecuting their civil rights claims, whether individually or through class actions, and potentially obtaining substantial emotional distress damages and punitive damages, among other remedies. In this context, the litigation involving the #TimesUp movement and related advocacy organizations should be more effective as well.