EEOC’s New “Enforcement Guidance on Harassment in the Workplace” Hits Hot-Button Issues

The EEOC has released long-awaited Enforcement Guidance on Harassment in the Workplace, No. 915.064 (Apr. 29, 2024) (the “Guidance"). The Guidance addresses a number of timely issues and should be of great interest and practical use for employers, as it sets out the EEOC’s position on such questions as the tension between pronoun usage and religious practice; abortion in the context of sex harassment; and social media as the basis for a harassment claim. This update is the first of its kind in 30 years, and largely tracks the proposed guidance that the EEOC issued in October of 2023.  

The Guidance does not create new law, and is not binding on courts. However, its release presents an opportunity for employers to revisit their harassment-prevention policies and procedures, and to update their anti-harassment training. Employers should also check in with human resources, employee relations, and any other function that may serve as an intake point for employee harassment complaints, to ensure that all complaints are received, investigated, and resolved with an eye toward mitigating risk.

The Guidance tracks the following key areas:

1. Emphasis on pregnancy-related sexual harassment. The EEOC clarifies that “sexual harassment” includes harassment based on decisions related to pregnancy, such as lactation, contraceptive choices, and the decision to have, or not to have, an abortion. This Guidance is particularly salient given the EEOC’s recent release of rules regarding the Pregnant Workers Fairness Act, which require employers to accommodate applicants and workers who need time off or other workplace modifications for an abortion procedure or recovery.
2. Recognition of harassment in virtual work environments. It has always been true that harassment can occur online or via email, instant message, “chat” platforms, or video conference. But the Guidance’s emphasis on this point recognizes the realities of a post-COVID landscape, which is often dominated by virtual work environments.    
3. Reaffirmed protections for LGBT+ employees. The EEOC has reiterated its position that harassment of LGBTQ+ workers – particularly transgender employees – may violate Title VII, following the Supreme Court’s landmark holding in Bostock v. Clayton County that sexual-orientation discrimination and gender identity/transgender discrimination are forms of “sex” discrimination under that law. The EEOC’s examples of prohibited conduct include comments suggesting that a person does not comport with stereotypical behaviors associated with their biological sex; asking unwelcome or invasive questions about a person’s sex or sex life; misgendering; and denying an employee access to a bathroom consistent with their gender identity.
4. Balancing of religious protections. The Guidance notes that Title VII’s protections include a prohibition against unlawful harassment on the basis of religion. The Guidance makes clear, however, that employers need not accommodate a religious practice in the workplace where doing so would create, or reasonably threatens to create, a hostile work environment for another employee. Here, the Guidance grapples with the “interplay between an employer’s Title VII obligation to provide a reasonable accommodation for an employee’s sincerely held religious beliefs, practices, and observances and its obligation to prevent and correct unlawful harassment in the workplace.” The Guidance specifically references Kluge v. Brownsburg Community School Corp., 64 F.4th 861 (7th Cir. 2023), in which a school teacher was terminated for failing to address transgender students by their preferred pronouns, citing his religious beliefs and practices as the reason he could not do so. The case is pending on remand to the Southern District of Indiana, and the EEOC’s Guidance states that the Commission will “give the final decision appropriate consideration when considering charges alleging these issues.”

With the final Guidance, the EEOC issued several educational resources, including a “Summary of Key Provisions” document, document for employees, and a fact sheet for small businesses.

A group of 20 states’ attorneys general submitted comments to the EEOC’s Proposed Guidance asserting that it violated Title VII of the Civil Rights Act of 1964 by going beyond the protections and prohibitions of that law, and a similar attorneys general coalition sued the EEOC on April 25 challenging its stance on abortion in its Pregnant Workers Fairness Act rules. We expect that the EEOC’s Final Guidance will be challenged as well.