The Equal Employment Opportunity Commission’s (EEOC’s) enforcement guidance on harassment in the workplace was recently updated for the first time in 30 years to adapt existing standards to the modern workplace. In step with June’s historical ties to the struggle for civil rights and equal treatment for LGBTQ+ workers, we wanted to call attention to the agency’s guidance related to evolving protections for this part of the workforce.

While not governing law, the guidance serves as a useful tool to reexamine your organizational culture and ensure you are providing a safe and professional working environment for everyone in your service.

Key Takeaway

The new guidance makes clear that harassment of LGBTQ+ workers—particularly transgender employees—can be considered a Title VII violation. The EEOC concluded that this was a natural extension of the Supreme Court’s groundbreaking 2020 decision in Bostock v. Clayton County, holding that sexual-orientation discrimination and gender identity/transgender discrimination are forms of “sex” discrimination under Title VII. According to the EEOC’s guidance, examples of harassment could include the denial of access to a bathroom consistent with the individual’s gender identity (we addressed this in a previous column), the intentional and repeated misgendering of an individual, or the harassment of an individual because they do not present in a manner stereotypically associated with their gender.

What’s Next? Legal Challenges Expected

After the EEOC initially proposed the updates back in September 2023, a coalition of 20 states said they would take legal action if the agency finalized certain aspects of the guidance. For instance, the group said the EEOC exceeded its authority by interpreting Bostock’s employment protections based on gender-identity too broadly. In response, the EEOC said, “The proposed guidance did not attempt to – nor does the final guidance attempt to—impose new legal obligations on employers with respect to any aspect of workplace harassment law, including gender identity discrimination. Nor does the guidance exceed the scope of the Supreme Court’s decision in Bostock.” 

Based on the EEOC’s response its finalized guidance, we expect the coalition to prepare a legal challenge for the courts to have the final say on the fate of this new guidance.

What Should Quick-Service Restaurants Do?

While legal challenges may impact the EEOC’s enforcement guidance, the update took effect immediately. You should review your policies in light of the changes and consider taking the following steps to stay compliant and promote a positive workplace culture for all employees:

  • Review the Enforcement Guidance on Harassment in the Workplace. It is the first guidance on harassment since the 1990s, and while we are highlighting the broad LGBTQ+ protections, there are also a number of other important takeaways relating to things like pregnancy and sincerely held religious beliefs. 
  • Make sure your policies are compliant with modern standards. The EEOC’s updated guidance highlights certain best practices for employers. For example, you should outline various examples of what could be considered harassment in your policy. You should also have a reporting policy that encourages employees to immediately report their concerns about potential harassment. Once policies are in place, you should ensure they are consistently enforced.
  • Train your managers to address issues and avoid common mistakes. The guidance is a reminder to ensure your supervisors are trained properly to identify and prevent workplace harassment. While some states (such as California, Connecticut, Delaware, Illinois, Maine, New York, and Washington) require sexual harassment training to be completed by employees, it is recommended that all employers provide this type of training regularly, regardless of what their state may or may not require. It’s also a good idea to review and update the training material every year.
  • Make sure all complaints are properly investigated and that appropriate corrective action is taken when improper conduct is found. It’s more important than ever for employers to follow clear processes with properly trained professionals in investigating and acting upon complaints or other concerns of potential harassment.

Workplace harassment claims pose a legal threat to all establishments, and while the EEOC’s guidance is not governing law, it will surely be referenced by agency staff, employment attorneys, and courts when addressing claims brought by LGBTQ+ employees. Thus, it would be in every quick-service restaurant’s best interest to have a thorough understanding of the new guidance and refer to it as a resource in reviewing and updating your policies to best prevent and address workplace harassment of LGBTQ+ employees moving forward. We would encourage you to embrace the new guidance as a useful tool to reexamine your organizational culture and make proactive changes to help propel your organization forward with more effective anti-harassment policies, complaint and investigation processes, and trainings.

Courtney Leyes and Emily Litzinger are employment lawyers at Fisher Phillips where they regularly partner with restaurant industry clients to minimize liability and reduce risk with preventative strategies focused on compliance, training, and the implementation of best practices. Having both worked in the industry, they understand the delicate balance restaurant employers face when managing a diverse and ever-changing workforce in today’s complex legal landscape.

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