not work-related. For instance, the Guidance cites the following examples of conduct occurring in an employee’s “virtual work environment” that employers can be liable for: “[a] sexist comments made during a video meeting, [b] racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting, or [c] sexual comments made during a video meeting about a bed being near an employee in the video image.” In addition to discussing conduct occurring in a “virtual work environment,” the Guidance also clarifies that conduct occurring in non-work-related contexts can contribute to a hostile work environment if it impacts the workplace. This includes electronic communications through phones, computers, and social media. For example, the Guidance cautions that, if an employee’s private social media posting subjects a co- worker to racial epithets, and other co-workers discuss the posting at work, then that Another notable aspect of the Guidance is that it incorporates Bostock , which held that Title VII’s prohibition of sex-based discrimination encompasses discrimination based on sexual orientation and gender identity. While Bostock concerned an allegedly discriminatory employment discharge and did not involve harassment, the EEOC states in the Guidance that the Supreme Court’s reasoning “logically extends to claims of harassment.” The Guidance therefore dictates that “sex-based harassment includes harassment on the basis of sexual orientation and gender identity, including how that identity is expressed.” The Guidance lists several examples of conduct that can constitute this type of harassment, including: “[a] epithets regarding sexual orientation or gender identity; [b] physical assault; [c] harassment because an individual does not present in a manner that would stereotypically be associated with that person’s gender; [d] intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (misgendering); or [e] the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.” The EEOC also includes a hypothetical fact pattern in the Guidance depicting harassment based on gender identity. In that hypothetical, supervisors and co-workers of a fast food employee who identifies as female commonly referred to the employee using her prior male name and pronouns, asked questions about her sexual orientation and anatomy, and asserted that she was not female. In addition, customers posting “can contribute to a racially hostile work environment.” Harassment Based On Sexual Orientation And Gender Identity “intentionally misgendered” the employee and “made threatening statements to her,” which the employer only responded to by reassigning the employee to a workstation where customers could not see her. These facts, according to the EEOC, established harassment based on gender identity and, therefore, sex-based discrimination under Title VII.
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© Duane Morris LLP 2024
The EEOC Litigation Review – 2024
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