The U.S. Equal Employment Opportunity Commission (EEOC) recently released some major decisions and pieces of guidance around employee rights and discrimination policies. As an enforcer of rules and laws, the EEOC has created these pieces of guidance to help employers and employees understand, act on, and report issues that defy rules like the Pregnant Workers Fairness Act (PWFA) and protection from workplace harassment. Generally, these releases form a federal “baseline” of rights and are not superseded by state-level regulation unless that regulation is more detailed, stringent, or broader in scope. They apply to public, private, and nonprofit organizations that employ more than 15 people, with the lone exception being organizations that are religious in nature.
Your nonprofit organization may already have policies in place that meet or go beyond the EEOC’s guidance on these matters. However, it’s very important that you stay current on their rules and understand how they apply to your organization, as they can help you identify areas for improvement in your own policy. Here are some of the major changes the EEOC has made recently:
Final Rule of PWFA
The PWFA, which became a rule last summer, creates a framework and set of rules and expectations that employers must follow to accommodate a pregnant employee. In mid-April, the EEOC released their final rule, which included several specific guidelines and regulations that employers must follow.
What is the PWFA?
The PWFA is viewed in some ways as an extension of the Americans with Disabilities Act (ADA) of 1990, but one which is more focused on the issues around pregnancy and natal health. Because most of the accommodations accorded to pregnant employees are likely to be temporary, the structure and enforcement of it is different than it would be for someone with a disability.
What does the final rule define as a “reasonable accommodation”?
Because of the many potential effects of pregnancy on an employee’s health, you should understand and respect that they may need a significant alteration to their regular duties. The EEOC evaluates these on a case-by-case basis, but some common examples are as follows:
- Changes to workstation or workplace policy regarding breaks, shift scheduling, or physical requirements. For example, an employee that normally spends much of their shift standing may request the option to work while seated as needed. Additional breaks to use the bathroom or rest may also be requested. If they wear a uniform, they may request new sizes or alterations to accommodate body changes.
- Employers can accommodate changes to schedule or other expectations, allowing a pregnant employee to work part time, partially remote, or fully remote, if possible. They can also work with the employee to help them do work asynchronously, as well as grant them leave for medical examinations, procedures, and other healthcare-related appointments.
How else can you help support pregnant employees?
If you haven’t already done so, you should consider giving your managers and HR team training in these policies and expectations. As part of this exercise, you can work out an official workplace policy, affirming or expanding on the rights created by the PWFA and granting your whole team access to these documents. This creates a healthy dialogue about the potential impact of a pregnancy and helps to avoid any unintentional infringement of your employee’s rights.
EEOC changes to workplace harassment guidance
As described above, the EEOC’s guidance on issues like harassment reflects their perspective and the limits of their enforcement; situations or issues described in their guidance should be considered part of their purview as an enforcement body.
Why is this new guidance significant?
The release of the EEOC’s new guidance is the first such release since 1999, and reflects the significant legislative and cultural changes that have taken place in the intervening 25 years. The guidance has incorporated data from complaints, comments from organizational leaders, and the legislative and legal priorities of the federal government.
What does the guidance change?
Some of the key elements of the guidance define culpability for harassment and further expand the definition of harassment. Here are some examples:
- Employers can be liable for harassment between employees or supervisors even if it happens outside the workplace.
- If a supervisor in some way ‘pushes’ an employee to engage in harassment of another employee, both the ‘pushed’ employee and the harassed employee can be considered victims of harassment.
- Growing awareness around the practice of “deadnaming” (using the name a transgender person was given at birth after they have changed it) or misgendering someone has led to the EEOC to consider these behaviors harassment in cases where this was done intentionally despite requests to stop and correct the behavior.
- Preventing a transgender employee from using the bathroom that corresponds to their gender identity is also considered harassment.
- Harassment of someone’s decision to get an abortion or not get an abortion is also examined in this guidance.
Please note, however, that some of these issues are under judicial scrutiny, including at the Supreme Court level, for any potential conflict with the First Amendment right to religious beliefs. As such, they may be subject to changes in wording, enforcement, or both.
What can you do about the new guidance?
Researching the guidance and relevant changes and cross-referencing this with your current organizational policy can help you create policies that protect both your organization and your employees. Organizational culpability can be handled through a rigorous, well-documented accountability and resolution process, which allows your employees to speak up and have allegations of harassment be considered and investigated thoroughly.
The guidance includes a checklist of items that you can use to craft or enhance your policy, including defining prohibited conduct, creating points of contact and a documented accountability process, and statements affirming that you will not retaliate against employees and you will protect their privacy.
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The information contained in this article is not a substitute for legal advice or counsel and has been pulled from multiple sources.
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