Mintz’s Employment Practice will continue to monitor any future developments and legal challenges and remains ready to assist employers with compliance with the PWFA and the EEOC’s final rule.

The Equal Employment Opportunity Commission ("EEOC") released its Proposed Enforcement Guidance on Harassment in the Workplace.  In light of recent legal developments, such as the Bostock v. Clayton County decision, which held that Title IX protects transgender persons from discrimination on the basis of sex, the #MeToo movement, the increase in remote work, changes to abortion rights, and changes in the way harassment may occur (e.g., online bullying or harassment), the proposed guidance illustrates the EEOC’s current interpretation of “existing requirements of the law” and/or its policies.  Here are some notable parts of the guidance:

The Boston Celtics recent scandal comes at a time when workplace harassment claims (as reported by the EEOC) are on the rise, yet consensual office romantic relationships remain fairly common.  While most employees do not want their employers placing limits on whom they may seek as a romantic partner, from an employer’s viewpoint, the risks of such romances are clear, as they can easily cause real issues in the workplace: interoffice gossip, lack of productivity, reduced moral, allegations of favoritism, or worse, claims of sexual harassment. Mintz attorney Delaney Busch discusses key takeaways from this scandal and policies to minimize the employer’s risk.

Congress has passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, marking a milestone in the #MeToo movement. This legislation (which President Biden is expected to sign into law) will effectively end mandatory arbitration of sexual assault and harassment disputes. Employees will now have a choice to proceed with their claims via arbitration or in court.

Mintz’s pro bono work for The Food Project, a nonprofit focused on youth development and reducing food insecurity, has included advising the organization on governance, real estate, employment, privacy, and litigation matters.

The EEOC has updated guidance clarifying when COVID-19 may comprise a disability under the ADA. In a new Section N of its COVID-19 guidance entitled “COVID-19 and the Definition of ‘Disability’ Under the ADA, Rehabilitation Act, and other EEO Laws,” the EEOC focuses on when COVID-19 is, or is not, a disability, and the resulting impact on an employer’s obligation(s) under the law. Importantly, the guidance clarifies that depending on the circumstances, COVID-19 can meet the ADA’s three-part definition of “disability” (i.e., “actual disability”, “record of disability” or being “regarded as an individual with a disability”) and provide protections to applicants and employees. However, not every individual with COVID-19 will qualify as disabled. Employers must assess on a case-by-case basis to determine if the requisite standards are met. The guidance provides multiple examples of actual disabilities and regarded as disabilities to further assist employers in their assessments.