In December 2023,
I wrote about the EEOC’s proposed harassment guidance in this blog. At that time, the public comment period had concluded but final guidance had not yet been released.
On April 24, 2024 – nearly 25 years after the EEOC last published guidance on the topic, the Equal Employment Opportunity Commission (EEOC) released
final guidance document on unlawful workplace harassment. It released a
summary of key provisions,
FAQs for employees, and
a fact sheet for small businesses.
My prior article unpacked significant topics within the guidance. This article flags noteworthy updates between the proposed and the final guidance documents.
The final guidance includes a section called “Addendum Pursuant to 29 C.F.R Sec. 1695.6(c) on EEOC Responses to Major Comments Received on the Proposed Enforcement Guidance on Harassment in the Workplace.” The Addendum contains responses to some hot-button issues.
Defining Sex-based Harassment
Commenters asserted that
Bostock1 was limited in scope and did not address, among other things, sex-segregated bathrooms. However, the final guidance took a broad-based approach regarding sex-based harassment involving sexual orientation and gender identity, explaining that sex-based harassment 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
denying access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.
Free Speech and Religious Views
The final guidance responded to commenters who raised concerns regarding free speech and religious views on topics such as abortion or pronouns by stating that:
Kate O’Malley, Marquette 2014, is senior manager, counsel – investigations at Genpact in Stevens Point.
the interplay between free speech protections and statutory harassment prohibitions in particular matters can be highly fact-specific, and the Commission will carefully consider these issues as presented on a case-by-case basis. A detailed discussion of free speech principles, however, is beyond the scope of this final guidance.
The Addendum also clarified that certain commenters’ interpretation of the guidance that “any workplace discussion of religious perspectives on certain issues, such as abortion or gender identity, would be unlawful harassment” is incorrect, and that “whether conduct constitutes unlawful harassment depends on all the circumstances and is only unlawful under federal EEO law if it creates a hostile work environment.”
It is notable that the final guidance added language to the introduction that was not included in the previous draft guidance:
In some cases, the application of the EEO statutes enforced by the EEOC may implicate other rights or requirements including those under the United States Constitution; other federal laws, such as the Religious Freedom Restoration Act (RFRA). … The EEOC will consider the implication of such rights and requirements on a case-by-case basis.
Effective Immediately
The new guidance supersedes five of the EEOC’s prior guidance documents published in the 1980s and 1990s.
The new guidance is effective immediately, but is likely to face legal challenges, particularly where free speech and religious-based rights intersect with the new EEOC guidelines, as well as from opposition groups who argue that the guidance pushes the definition of “sex-based harassment” too far.
Despite these potential legal challenges, employers should review existing anti-harassment policies and trainings with counsel to determine whether any changes are appropriate in light of the new guidance.
Endnote
1
Bostock v. Clayton County, 590 U.S. ___, 140 S. Ct. 1731, 207 L.Ed. 2d 218 (2020).
