Employment & Labor Insider

Last fall, I reported on a proposed Enforcement Guidance issued by the Equal Employment Opportunity Commission on workplace harassment. I gave the proposed guidance a good review overall, although I had some disagreements here and there.

The final version of the Guidance was issued this past Monday, April 29, and took effect that day.

Overall, I still think the Enforcement Guidance will be very helpful to employers – at least, the ones who read it – and to their attorneys, who surely will because we’re a bunch of nerds.

The hot stuff

The EEOC says it received more than 37,000 comments in response to the proposed Guidance, and much of it was focused on what I will refer to as the “emerging issues” related to transgender employees and pregnancy as it relates to abortion. Here’s a summary:

• The EEOC is taking the position that “repeated and intentional” misnaming or misgendering of a transgender employee could be unlawful harassment based on gender identity.
• The EEOC is also taking the position that it is unlawful harassment to refuse to let a transgender employee use the restroom that corresponds with their gender identity.
• Generally, mistreating an employee because she is having an abortion – or not having an abortion – could be a form of unlawful harassment based on sex/pregnancy.
• There may be some exceptions to the above for religious employers and based on employees’ sincerely held religious beliefs, but the EEOC is going to wait and see what the courts do in light of the U.S. Supreme Court’s decision last summer in Groff v. DeJoy. That decision imposed a more strenuous obligation on employers to accommodate employees' religious beliefs. But for now, the EEOC will expect employers to require employees to use preferred pronouns and to allow transgender employees to use the restrooms of their choice.

One important case involving transgender rights and religious rights might have an impact on the EEOC’s position. The case is Kluge v. Brownsburg Community School Corp. In 2023, the U.S. Court of Appeals for the Seventh Circuit found in favor of a school district that effectively terminated a teacher who had a religious objection to using preferred names and pronouns with transgender students. He and the school district had reached an accommodation in which the teacher would address all of his students by their last names only. But after receiving a number of complaints, the school district told the teacher he'd have to use preferred names and pronouns or else. When the Supreme Court issued its religious accommodation decision in Groff, the Seventh Circuit vacated its Kluge decision and sent the case back to the lower court (in Indiana). But earlier this week, the lower court dismissed the lawsuit again – denying Mr. Kluge’s motion for summary judgment, and granting the countermotion of the school district. Mr. Kluge, who is represented by the Alliance Defending Freedom, is very likely to appeal this latest decision to the Seventh Circuit, and if he is unsuccessful there, to ask for Supreme Court review. A win on appeal could force the EEOC to become more "accommodating" when religious beliefs clash with transgender rights.

In my opinion, employers should at least try to accommodate employees who have religious objections related to pronoun use, as this case (involving Virginia state law) shows.

Bread and butter

On less cutting-edge harassment issues, the final Enforcement Guidance has a lot of good information for employers. Here are some highlights:

• Harassment based on “sex” includes harassment based on pregnancy or pregnancy-related conditions (including lactation, contraception, and abortion – either having one or not having one), sexual orientation, and gender identity.
• The Guidance has a good discussion of what the EEOC calls “Cross Bases Issues.” I hate that name, but the concept is helpful. It includes harassing someone because of a mistaken belief that they belong to a certain protected group (for example, a Mexican who is harassed by a co-worker because the co-worker thinks he’s Pakistani). It also includes “associational discrimination” (for example, harassing a white employee because she is married to a Black man), and “intraclass harassment” (harassment where the perpetrator and the victim are in the same protected category). Regarding the latter, the EEOC provides examples, among others, of an employee in her 50s harassing a 65-year-old because of the latter’s age, and a woman harassing female co-workers about their child-bearing choices. Finally, there is “intersectional harassment” – for example, harassing Black women but not Black men or white women -- and harassment based on stereotypes.
• In discussing whether the behavior would be offensive to a reasonable person, the Guidance notes that perceptions can change over time – for example, “after the end of a romantic relationship, or where a colleague’s race-based jokes are initially dismissed as poor attempts at humor, but become unwelcome when they persist or are later accompanied by additional race-based conduct.” The Guidance also notes that being fine with certain behavior from certain co-workers doesn’t mean that similar behavior isn’t unwelcome when it comes from others. All good points to cover in harassment training.
• In determining whether the behavior would be offensive to a reasonable person, the EEOC will look at it from the viewpoint of a reasonable person in the victim’s protected group, rather than some generic “reasonable person.”
• The Guidance clarifies that one request for a date, or one attempt at religious proselytization, may not be harassing, but repeated overtures at some point could create a hostile work environment.
• On social media, the EEOC has taken the position that if an employee posts offensive material on his or her personal account but the post does not target co-workers, the post will not normally be considered harassing, even if co-workers see the post and are offended by it. On the other hand, if the employee’s offensive post does target particular co-workers, then it is likely to be considered harassing.
• “Revenge porn” is considered a form of unlawful sexual harassment. No surprise there.
• The EEOC says that employers should accommodate their employees’ religious beliefs unless doing so would, or would threaten to, create a hostile work environment for other employees. This seems as if it could apply to employees who have religious objections to using preferred names and pronouns – but, again, unless a court decision forces the EEOC to do so, employers should not expect the agency to take a favorable view of that type of religious accommodation.
• One point in the EEOC Guidance that I appreciated is a statement that an employer should not presume guilt just because the alleged harasser is a member of a particular protected group. And the EEOC actually uses the example of a man accused of sexual harassment, saying that the employer should not presume that the accused is guilty just because he’s a man. Way to go, EEOC!

I don’t agree with every position taken by the EEOC in this Enforcement Guidance, but for the most part, it seems pretty sound. The Guidance also includes helpful examples that employers can incorporate into their regular harassment training and also refer to in dealing with particular situations as they arise. Whether you agree with it all or not, the EEOC’s object (one of them, anyway) seems to have been to help employers comply with the law instead of looking for ways to trip them up.