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EEOC Updates Federal Workplace Guidelines on Pronouns, Bathrooms, and Abortions

The EEOC has issued new guidance on workplace harassment for the first time in 25 years. Its update follows the landmark U.S. Supreme Court decision ruling that anti-bias laws include protections for discrimination based on sexual orientation and gender identity. With the new guidance, the EEOC establishes it is an unlawful employment practice for employers to repeatedly and intentionally misgender transgender employees by using a "name or pronoun inconsistent with the individual's known gender identity" or by denying access "to a bathroom or other sex-segregated facility consistent with the individual's gender identity." Sex discrimination also includes acts taken against employees based on decisions to have abortions or use contraception. While the guidance is not legally binding, it signals how the EEOC will enforce anti-bias laws and how litigants may use the guidelines to support their claims.

In addition, the guidance provides counsel on remote work, asserting conduct within a virtual work environment can contribute to a hostile work environment. For example, "sexist comments made during a video meeting, ageist or ableist comments typed in a group chat, racist imagery that is visible in an employee's workspace while the employee participates in a video meeting, or sexual comments made during a video meeting about a bed being near an employee in the video image."

Conservative public officials and religious groups are critical of the new guidance. They state it conflicts with state laws on abortion and LGBTQ issues, and it fails to note religious employers are exempt from anti-discrimination laws in certain circumstances.