Seyfarth Synopsis: On October 2, 2023, the Equal Employment Opportunity Commission (“EEOC”) published notice of its “PROPOSED Enforcement Guidance on Harassment in the Workplace” (“draft enforcement guidance”) in the Federal Register.  Employers should pay attention because the draft enforcement guidance sets forth the standards to which the EEOC will seek to hold employers liable, and the EEOC is expected to finalize and adopt the draft enforcement guidance following a 30-day comment period ending on November 1st. 

Background

With a 3-2 vote on August 22, 2023, the EEOC voted to move forward with publishing the draft enforcement guidance for public comment, with the three Democrats voting in favor and two Republicans voting to disapprove. This was one of the first votes made by Commissioner Kalpana Kotagal, whose swearing-in occurred weeks earlier in August, and it marks one of many ways the new Democratic majority on the EEOC already has been exercising its power to move forward with its public policy agenda.

The draft enforcement guidance published this October is the latest step in a process that the EEOC started in 2015 and continued in 2016 with the publication of a bipartisan report on harassment, making recommendations to employers on steps to prevent harassment. In the waning moments of the Obama administration, in January 2017, the EEOC solicited public comments on a prior version of the draft enforcement guidance. And while in November 2017 the EEOC did publish a document discussing “Promising Practices for Preventing Harassment” in the workplace, the EEOC has been silent for several years regarding the draft enforcement guidance. Employers can infer that today’s Democrat majority views finally moving forward with the harassment guidance as an important part of their policy agenda, and employers can expect the pace of this and similar policy-driven efforts at the EEOC to accelerate.

Substantive Areas of Interest in the Draft Enforcement Guidance

The draft enforcement guidance is both a compendium of work done in the workplace harassment space over the past 37 years – from Meritor to #MeToo – and a practical toolkit that aims to remain relevant and helpful in whatever metaverse employers and workers find themselves in the future.

While parts of the draft enforcement guidance are largely noncontroversial in 2023 (for example, it is widely understood that protected-class-based epithets can serve as the basis for a harassment claim), the draft enforcement guidance treads some new ground.  For instance, it considers an employer’s obligation to address the workplace effects of an employee’s personal social media activity:  “Conduct that can affect the terms and conditions of employment, even though it does not occur in a work-related context, includes electronic communications using private phones, computers, or social media accounts, if it impacts the workplace.” 

It remains unclear, however, when an employer will be said – or expected – to have knowledge of that activity or its potential spillover into a hostile work environment.   It seems unlikely that the EEOC would encourage employers to monitor their employees’ social media activity, but what if an individual supervisor sees something on an employee’s social media page?  Will that supervisor’s knowledge be imputed to the employer?  This “knowledge” matter is further complicated by the EEOC’s stance in the draft enforcement guidance that an employer cannot avail itself of the Faragher-Ellerth affirmative defense to a hostile work environment harassment  claim if an employee “took [] reasonable steps to avoid harm from the harassment” – even if the employee fails to use the employer’s complaint process.

Stepping into the post-Bostock era, the draft enforcement guidance is unambiguous in citing intentional misgendering or misnaming – or disallowing someone from using a restroom consistent with their gender identity – as examples of sex-based harassment.

Potential Areas of Conflict Between the Draft Enforcement Guidance and Recent NLRB Decisions

Should the draft enforcement guidance take effect as written, employers will have to thread the needle between the EEOC’s requirement that they act on out-of-work conduct that creates a hostile work environment and the National Labor Relations Board (“NLRB”) August 2023 decision requiring that employers take care not to place impermissible restrictions on employee speech, including out-of-work speech on social media.  See Stericycle, Inc. and Teamsters Local 628, 372 NLRB No. 113 (2023) (holding that a facially neutral work rule is presumptively unlawful if a “reasonable” employee predisposed to engaging in protected concerted activity could interpret the rule to have a “coercive meaning.”).

Employers will also have to juggle the EEOC’s mandate that they “must take corrective action that is ‘reasonably calculated to prevent further harassment’” (emphasis added) with the NLRB’s May 2023 decision prohibiting employers from disciplining employees for certain harassing conduct that occurs while an employee is engaged in protected conduct.  See Lion Elastomers LLC II, 372 NLRB No. 83 (2023) (holding that employers must evaluate employee misconduct, including harassing conduct, against “setting-specific standards” to determine whether the misconduct is afforded impunity because the employee was engaged in conduct otherwise protected by the National Labor Relations Act).  While the NLRB acknowledges the concern that conflicts could arise between its holding and antidiscrimination laws, it says only that it will cross that bridge if it comes.  The draft enforcement guidance is silent on the topic.

* * * * *

The draft enforcement guidance is robust, and beyond defining and providing examples of potentially violative conduct, it prescribes preventative conduct around implementing accessible and effective policies, procedures, and trainings, including by providing multiple avenues for reporting harassment, requiring supervisors to report harassment, providing adequate confidentiality and anti-retaliation protections, and ensuring that training is tailored to the workplace and provided to all employees on a “regular basis.”    The EEOC invites public comment on the draft enforcement guidance before November 1, and we expect that the EEOC will produce a final version of the Guidance after the comment period closes.