Friday, September 29, 2023: U.S. EEOC Tries Again with Proposal to Update Workplace Harassment Guidance
In its second attempt since 2017, the U.S. Equal Employment Opportunity Commission (“EEOC”) unveiled a proposal to update its “Enforcement Guidance on Harassment in the Workplace.” Announced via a press release on Friday, the agency also published on Monday, October 2, a Federal Register notice requesting public comment. You may submit comments here on or before Wednesday, November 1, 2023.
The newly proposed update explains the legal standards and employer liability applicable to harassment claims under the federal employment discrimination laws enforced by the EEOC. It provides numerous updated examples to reflect a wide range of scenarios, incorporates updates throughout on current case law on workplace harassment, and addresses the proliferation of digital technology and how social media postings and other online content can contribute to a hostile work environment.
The EEOC sent the proposal for White House Office of Management and Budget (“OMB”) review on August 25, 2023, and the OMB concluded its review on September 27.
The Commission’s current guidance, issued on May 1, 1987, is here. These guidelines in their current form as well as the proposed update, if finalized, do/will not have the binding legal force and effect of law.
Scope of Harassment Covered
The proposed guidance points out:
“Although many high-profile harassment cases involve harassment based on sex, race, or national origin, the EEOC also enforces laws prohibiting work-related harassment based on color, religion, disability, genetic information, and age (40 or over).”
Moreover, the proposal provides that sex-based harassment also includes harassment based on:
- pregnancy, childbirth, or related medical conditions, including lactation. This includes harassment based on a woman’s reproductive decisions, such as decisions about contraception or abortion; and
- sexual orientation and gender identity, including how that identity is expressed.
Balancing Anti-Harassment & Accommodation Obligations with Respect to Religious Expression
The proposed guidance states [at Section IV(C)(3)(b)(ii)(b), Item (7)]:
“Special consideration 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 in the absence of undue hardship. Employers, however, also have a duty to protect workers against religiously motivated harassment. Employers are not required to accommodate religious expression that creates, or reasonably threatens to create, a hostile work environment. 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]
Previous Revision Attempt
Friday’s press release on the new proposal notes:
“The EEOC first released a proposed guidance on workplace harassment for public comment in 2017, but it was not finalized. The updated proposed guidance reflects notable changes in law, including the Supreme Court’s  decision in Bostock v. Clayton County [140 S. Ct. 1731], the #MeToo movement, and emerging issues, such as virtual or online harassment.”
The EEOC’s January 9, 2017, proposal is available here, and the corresponding press statement is here.
Commission Apparently Voted Along Party Lines
The EEOC’s press release merely states that the new proposal was posted “[f]ollowing a majority vote” of the bipartisan Commission but does not disclose how each of the five Commissioners voted. However, Law360 reported on Friday [subscription required] that EEOC spokesperson Victor Chen told them that “the blueprint was approved by a 3-2 vote of the commissioners,” but Chen did not clarify how each Commissioner voted. As Kalpana Kotagal became the third Democrat on the five-member bipartisan Commission in mid-August, it would appear that the vote was along party lines.
An unnamed “EEOC spokesperson” also told Law360 that “[t]his new guidance is the first voted document the EEOC has issued on harassment since its ‘Enforcement Guidance on Vicarious Liability for Unlawful Harassment by Supervisors’ in 1999.”
Notably, one year ago a federal district court in Texas issued a nationwide injunction that vacated and set aside other sub-regulatory “guidance” documents that the EEOC published on June 15, 2021. In our story on that injunction, we pointed out that the guidance documents at issue “seamlessly address[ed] policy issues that went beyond the holding of the SCOTUS’ Bostock case decision” and “addressed and resolved sensitive and controversial issues not even before the Bostock Court for decision.”