Monday, April 29, 2024: U.S. EEOC Released Finalized Controversial Update to its Workplace Harassment Guidance
New Asserted Protections for Contraception, Abortion Decisions, Sexual Orientation & Gender Identity (Including Pronouns & Bathroom Use) Spark Controversy
The U.S. Equal Employment Opportunity Commission (“EEOC”) finalized updates to the agency’s sub-regulatory “Enforcement Guidance on Harassment in the Workplace.” The new guidance updates, consolidates, and replaces the agency’s five guidance documents issued between 1987 and 1999, and serves as a single, unified agency resource on EEOC-enforced workplace harassment law, the Commission explained in a press release. The updated guidance reflects notable changes in law, including the Supreme Court’s [2020] decision in Bostock v. Clayton County [140 S. Ct. 1731], and emerging issues, such as virtual or online harassment.
The new guidance does not have the binding legal force and effect of law.
The EEOC’s press statement also reports that:
“Between fiscal years 2016 and 2023, more than a third of all discrimination charges received by the EEOC included an allegation of harassment based on race, sex, disability, or another characteristic covered by the laws enforced by the agency. Also, since fiscal year 2018, harassment has been alleged in over half of federal sector equal employment opportunity complaints. In addition, among the 143 merits lawsuits that the Commission filed in fiscal year 2023, approximately 35% of those cases included an allegation of harassment.”
Along with the final guidance, the EEOC issued a “Summary of Key Provisions,” a document for employees, and a fact sheet for small businesses.
Newly Announced Protections Include Contraception & Abortion Decisions, Sexual Orientation & Gender Identity (Including Pronouns & Bathroom Use)
Section II.A of the guidance provides that covered bases for prohibited harassment include: Race, Color, National Origin, Religion, Sex (which encompasses Harassing Conduct of a Sexualized Nature or Otherwise Based on Sex, Pregnancy, Childbirth, or Related Medical Conditions Under Title VII, and Sexual Orientation and Gender Identity), Age, Disability, Genetic Information, Retaliation, and Cross-Bases Issues.
As to pregnancy, childbirth, or related medical conditions, the guidance states that:
“This can include issues such as lactation; using or not using contraception; or deciding to have, or not to have, an abortion.” [citations omitted]
Regarding sexual orientation and gender identity, the guidance provides that:
“… sex-based harassment includes harassment based on sexual orientation or gender identity, including how that identity is expressed. Harassing conduct based on sexual orientation or gender identity includes epithets regarding sexual orientation or gender identity; physical assault due to sexual orientation or gender identity; outing (disclosure of an individual’s sexual orientation or gender identity without permission); harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex; repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.” [citations omitted]
Balancing Anti-Harassment & Accommodation Obligations with Respect to Religious Expression
The updated guidances states [at Section IV(C)(3)(b)(ii)(b), Item (7)]:
“Special considerations when balancing anti-harassment and accommodation obligations with respect to religious expression: Title VII requires that employers accommodate employees’ sincerely held religious beliefs, practices, and observances unless doing so would impose an undue hardship. Employers also are responsible for protecting workers against unlawful harassment, including harassment motivated by religion or created by religious expression. To address these dual obligations, an employer should accommodate an employee’s sincerely held religious practice of engaging in religious expression in the workplace, unless doing so would create, or reasonably threatens to create a hostile work environment. Thus, while an employer may need to provide a religious accommodation that disrupts “[c]omplete harmony in the workplace,” the employer should take corrective action to address religious expression that creates, or threatens to create, a hostile work environment, or otherwise would result in undue hardship. As with other forms of harassment, an employer should take corrective action before the conduct becomes sufficiently severe or pervasive to create a hostile work environment.” [citations omitted]
Editor’s Note: This Commission conclusion exalts the rights of LGBTQ employees over the rights of employees holding religious objections to LGBTQ practices. Litigation will certainly ensue over this Commission position which seeks to resolve this collision of two different rights Title VII simultaneously protects.
How We Got Here
On September 29, 2023, the EEOC announced its proposed version of the updated guidance (see our story here). On October 2, the agency published a Federal Register notice requesting public comment. The public comment period on the proposed version closed on November 1, 2023, with over 38,100 comments submitted. The finalized guidance contains an “Addendum Pursuant to 29 C.F.R. § 1695.6(c) on EEOC Responses to Major Comments Received on the Proposed Enforcement Guidance on Harassment in the Workplace.” The Commission submitted its finalized update to the White House Office of Management and Budget (“OMB”) for review on March 4, 2024, and the OMB approved it on April 29.
Commission Votes
The EEOC announcement on April 29 stated that the finalized update was “approved by a majority vote of the Commission.” Currently, the Commission’s webpage listing how each Commissioner voted on specific items only runs through March 2024. However, Bloomberg reported that it “was approved by a 3-2 vote on party lines on April 25, according to a person with direct knowledge of the matter.”
Commissioner Statements
Four of the five Commissioners issued statements on the Final Rule.
The Commission’s press release contained Chair Charlotte Burrows’ (D) take in support. “Harassment, both in-person and online, remains a serious issue in America’s workplaces. The EEOC’s updated guidance on harassment is a comprehensive resource that brings together best practices for preventing and remedying harassment and clarifies recent developments in the law,” Chair Burrows said.
Vice Chair Jocelyn Samuels’ (D) statement in favor said in part: “EEOC’s updated Enforcement Guidance on Harassment explains the latest legal developments, clarifies the applicable legal standards, and addresses the complex and evolving ways in which harassment occurs, including online. Significantly, the Guidance addresses harassment based on sexual orientation and gender identity and harassment against vulnerable populations and underserved communities, including undocumented workers, teen workers, and survivors of gender-based violence. It also offers scores of concrete examples to help guide employees and employers on their rights and responsibilities.”
Commissioner Kalpana Kotagal’s (D) statement supporting the action notes in part: “The guidance reflects important developments affirming that individuals are protected against harassment on the basis of sexual orientation and gender identity. It addresses emerging issues such as online harassment and provides illustrative examples across a range of scenarios.”
Commissioner Andrea Lucas (R) summarized her statement against the action by noting, “I voted to disapprove the final guidance, for reasons including the guidance’s assault on women’s sex-based privacy and safety rights at work, as well as on speech and belief rights.”
Commissioner Keith Sonderling (R) did not issue a statement.