8 ILLINOIS BUSINESS LEADER On April 29, 2024, the U.S. Equal Employment Opportunity Commis sion (EEOC) issued new Enforce ment Guidance on Harassment in the Workplace, which goes into effect immediately. For the past five years, over one-third of the charges of em ployment discrimination received by the EEOC included an allegation of unlawful harassment based on race, sex, disability, or another statutorily protected characteristic. Employers need to be aware of the EEOC’s new enforcement guid ance because it expands the scope of conduct that constitutes unlawful “harassment” in the workplace which violates Title VII of the Civil Rights Act of 1964 (Title VII). Title VII protects “sex,” which includes “pregnancy, childbirth, and related medical conditions” and sex ual orientation and gender identity. Under the EEOC’s new guidance, employee protections against unlaw ful harassment specifically includes, among other things: • harassment based on issues linked to a targeted individual’s pregnancy, childbirth, or related medical conditions; • “misgendering” (i.e., repeated and intentional use of a name or pronoun inconsistent with an individual’s known gender identity); • “outing” (i.e., disclosure of an individual’s sexual orientation or gender identity without permission); • denial of access to a bathroom or other sex-segregated facility consistent with an individual’s gender identity; and • any of the above conduct within a “virtual” work environment. The EEOC’s guidance provides specific examples to illustrate con duct that would qualify as unlawful harassment in these situations. Pregnancy, Childbirth or Related Medical Conditions Sex-based harassment under Title VII includes harassment based on the individual’s lactation, morning sick ness, physical size during pregnancy, using or not using contraception, or deciding to have, or not to have, an abortion. Misgendering, Outing, Pronouns Failing to address or designate an employee by their known gender identity or correct pronoun (a/k/a misgendering) qualifies as unlawful harassment under Title VII if it is done repeatedly or intentionally. Similarly, disclosing an employ ee’s sexual orientation or gender identity without their permission (a/k/a outing) also qualifies as unlawful harassment. Sex-based harassment also includes conduct because an individual does not pres ent themself in a manner that would stereotypically be associated with that person’s sex. EMPLOYMENT LAW By Marissa R. Borschke & Kevin Kleine Amundsen Davis Law LLC Proper Pronouns, Bathrooms & Misgendering:
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