By Dale Conder Jr.
In 2017, the EEOC proposed guidance updates for workplace harassment. These proposed guidelines were never finalized. Since 2017, the workplace has seen a lot of changes. And the 2023 proposed updates are written to address changes such as the #MeToo movement or virtual harassment, and the Supreme Court of the United States’ opinion in Bostock v. Clayton County. The EEOC posted the proposed guidance at the end of September 2023, and public comment closed on November 1, 2023. If the guidance is not interrupted by law suits, it will be effective in early 2024.
#MeToo Movement
Following the Harvey Weinstein verdict and as a result of the #MeToo movement, an AP poll found that people are more willing to call out misconduct. According to the poll, thirty-five percent of Americans consider sexual misconduct to be an “‘extremely’ or ‘very’ serious problem in the workplace.” Forty-seven percent consider sexual misconduct to be a “‘somewhat’ serious problem.” These findings are one motivation for the EEOC pursuing new guidance.
The virtual workplace
Since COVID-19 many employers began using the virtual workplace, and many employees still use the virtual workplace. Can harassment occur through the virtual world? Yes! Although you might think that what is in your house or on your walls is “your business,” this changes if you are participating in a virtual meeting for work. For example, you might have art work on your wall that can reasonably be interpreted as sexist or racist or hostile to a particular religion. A co-worker who interprets it as sexist or racist or hostile to a particular religion, might complaint to a supervisor about a hostile work environment. It could be books or magazines that are visible. This is not new. These situations could also create a hostile work environment in the brick-and-mortar workplace if displayed. Virtual meetings might change whether you wear shoes to work or to a virtual meeting, but you should otherwise treat the virtual workplace as if you put on shoes and drove to the office.
Protections for LGBTQ+ employees
In 2020, the Supreme Court decided Bostock v. Clayton County, a companion case, and a third case that raised the same question: Does Title VII’s prohibition of discrimination “because of sex” prohibit discrimination on the basis of sexual orientation and gender identity? In the majority opinion, written by Justice Gorsuch, the Court held that Title VII’s prohibition of discrimination “because of sex” prohibits discrimination based on sexual orientation and gender identity. Justice Gorsuch explained that an employer who is fine with employees who are attracted to persons of the same sex, but fires a gay or transgender employee has acted “because of sex.” The Court interpreted the words in the statute, and not what some member of the U.S. Congress thought the words meant in 1964.
In the proposed guidance, the EEOC says that Title VII applies to misgendering, that is, the “intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (misgendering).” This declaration by the government, might violate one’s First Amendment rights to free-speech and free-exercise of religion. Meriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021). In Meriwether, the Sixth Circuit held that a public university’s mandate that professors use students’ preferred pronouns and the ensuing discipline, violate the professor’s free-speech and free-exercise rights protected by the First Amendment. It is significant that the professor worked for a public university. The Constitution, except for the Thirteenth Amendment, limits the government not private entities. Private employers can adopt a policy like the university’s policy, and enforcing it will not violate the First Amendment.
Title VII and other anti-discrimination laws protect employees from discrimination based on decisions related to pregnancy.
Not only does Title VII prohibit sexual-orientation and gender-identity discrimination, it also prohibits harassment based on decisions involving pregnancy. The protection from pregnancy-related harassment includes decisions about contraceptive use, abortion decisions—whether to have an abortion or not—pregnancy related medical decisions and conditions, and lactation-related matters.
Discrimination because of religion, race, or national origin
This anti-discrimination provision applies even if the harasser’s perception is wrong. For example, a co-worker thinks a fellow worker is “an Arab,” but the perception is wrong. Based on his wrong perception, the harasser makes harassing and discriminatory comments as if his fellow worker is Arab. The fellow worker is from India and sues under Title VII. The employer moves to dismiss the case because the harasser’s perception was wrong. Although several courts have held that the misperception does not save the employer, there a few that have held Title VII does not apply to discrimination based on a misperception. The best way to handle this is to treat it as if the majority of courts are right.
And discrimination can be based on more than one protected characteristic. For example, in the situation described above, the harasser thinks the fellow worker practices Islam, when, in fact, the fellow worker practices the Hindu religion. In his confusion, the harasser makes harassing comments critical of Islam. It is still discriminatory conduct based on national origin and religion.
Title VII requires employers to accommodate sincerely held religious beliefs, practices, and observances to the extent this does not create a hostile work environment. For example, Cindy tries to persuade her co-worker Ted that he should join her religion. Ted simply tells Cindy that he is fine with his current religion or non-religion. If Cindy stops, there is no problem. But Cindy persists because of her understanding of her religion’s view of proselytizing. This can quickly lead to a harassing or discriminatory situation. If Ted complains to the supervisor, the supervisor needs to investigate the matter and take the necessary steps to stop Cindy’s zealousness.
What should you do in light of the proposed new guidance?
The first step is to review the guidance and your HR policies. Where your policies conflict with the new guidance, you should start the process of reevaluating your policies. The new guidance has resources to help employers evaluate their policies to come into compliance.
Mr. Conder has significant experience in the areas of employment law (representing employers only) and federal civil rights litigation. He also has significant experience in appellate advocacy. Mr. Conder has represented a number of police departments and municipalities in 42 U.S.C. § 1983 litigation. Mr. Conder is a member of the firm’s Tort and Insurance Practice Group and the Employment Law Practice Group. He also serves as the firm’s ethics partner.