On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) issued its final harassment guidance, updating the previous version with Bostock, #MeToo, and remote work issues. The most controversial guidance involves broad protections of LGBTQ+ employees, especially transgender employees, which the EEOC believes is a natural extension of the Supreme Court’s Bostock decision and has already drawn the expected lawsuit by Republican attorneys general (AGs).
The guidance defines harassment as including the following:
The guidance provides resources for employers to review and update their harassment policies to best prevent and address workplace harassment.
On May 15, the EEOC announced that it received a total of 81,055 charges in fiscal year (FY) 2023, up nearly 7,600 from the previous year and the most received since 2017. Of the charges, 29,100 or 36% claim disability discrimination, while color discrimination charges were up 1,700 to 5,800. Race discrimination was mentioned in more than 27,500 charges and represented the highest number of race-related charges since FY2016. Sex discrimination claims were up 5,500 to over 25,400 last year, with part of the increase seeming to be sexual orientation and gender identity discrimination. The Pregnant Workers Fairness Act (PWFA) has generated 188 charges since it went into effect in June 2023.
In April, a group of 17 Republican state AGs filed a lawsuit alleging the EEOC’s position that the PWFA encompasses abortion-related workplace accommodations is unconstitutional, that the regulations are invalid because they violate the Administrative Procedure Act, and that the EEOC’s independent commission structure violates the Constitution.
On May 14, Louisiana and Mississippi sued the EEOC claiming the requirement that employers must accommodate employees if they get an abortion flouts the states’ sovereignty because both have laws on their books limiting abortions and that they will have irreparable financial harm to comply with the abortion accommodation when employees take time off under the abortion accommodation.
On May 14, 18 Republican AGs asked a Tennessee federal district judge to block the EEOC’s recently released guidance on harassment, claiming the agency violated the Constitution and the Administrative Procedure Act in attempting to legislate gender identity protections that go beyond the Supreme Court’s Bostock decision. The lawsuit specifically cites the guidance on use of workers’ preferred pronouns, requiring employers to allow transgender employees to dress and use restrooms that correspond with their gender identity as conflicting with laws enacted by plaintiffs states.
The states argue the EEOC engaged in an “end-run around our constitutional institutions” by misusing its authority to eliminate women’s private spaces and punishing the use of “biologically-accurate pronouns.” The EEOC’s previous guidance on Bostock, which it uses to support its position in its newly released guidance, was blocked by a federal district court in Texas.
On Tuesday, May 14, a federal district court judge in California seemed ready to allow Derek Mobley to continue his litigation against Workday, in which he alleges its hiring tools violate federal employment law. The judge wanted to know what entity would be liable when a vendor of high-tech workplace tools becomes aware that its tool is creating biased results but the employer using the tool is unaware of the issue.
In response to Workday’s argument that even if the vendor had designed the tool to discriminate, Title VII of the Civil Rights Act of 1964 wouldn’t cover the vendor, the judge indicated she was concerned with the company’s position. The issue in the case is whether Title VII covers such hiring software vendors if their actions affect applicants’ opportunities to be hired.
Mobley argues Workday’s programs make it liable as either an employment agency, employer’s agent, or indirect employer under Title VII. The judge in the hearing on the motion to dismiss raised the concern that employers could outsource their liability to a third party not covered by the statute. The EEOC has filed an amicus brief supporting Mobley in the motion to dismiss.
H. Juanita Beecher is an attorney at FortneyScott.
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