After a 3-2 vote along political party lines, the EEOC recently voted to publish its Proposed Enforcement Guidance on Harassment in the Workplace, which remains open to public comment until November 1, 2023. When the current version is finalized, it will be the first update on harassment issued by the EEOC in almost 25 years and will consolidate, supersede and update five dated EEOC guidance documents on the topic: Compliance Manual Section 615:Harassment (1987); Policy Guidance on Current Issues of Sexual Harassment (1990); Policy Guidance on Employer Liability under Title VII for Sexual Favoritism (1990); Enforcement Guidance on Harris v. Forklift Sys., Inc. (1994); and Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999). The EEOC’s last proposed guidance on harassment was issued in 2017 but was never finalized under the Trump administration. The proposed guidance follows the EEOC’s 2024-2028 enforcement priorities, which include preventing and remedying systemic harassment.

In addition to reiterating the EEOC’s position on what constitutes unlawful harassment (including causation and liability standards) and providing well-worn examples of workplace harassment, the EEOC’s newest proposed guidance also “reflects notable changes in law, including the Supreme Court’s decision in Bostock v. Clayton County, the #MeToo movement, and emerging issues such as virtual or online harassment.”  The following are notable topics addressed in the draft enforcement guidance:

Sexual Orientation and Gender Identity
Referencing the Bostock decision, 140 S. Ct. 1731 (2020), the proposed guidance explains that the decision itself “concerned allegations of discriminatory discharge, but the Supreme Court’s reasoning in the decision logically extends to claims of harassment. Indeed, courts have readily found post-Bostock that claims of harassment based on one’s sexual orientation or gender identity are cognizable under Title VII.”  As a result, the EEOC specifically identifies: 1) intentional and repeated use of a name or pronoun inconsistent with an individual’s gender identity (i.e. misgendering); and 2) the denial of access to sex-segregated facilities like bathrooms and locker rooms that are consistent with an individual’s gender identity as examples of sex-based harassment.

Consistent with the EEOC’s proposed regulations to implement the Pregnant Workers Fairness Act, which contemplates reasonable accommodation in the form of leave for abortion-related care, the EEOC’s proposed guidance states that sex-based harassment also includes harassment based on “pregnancy, childbirth, or related medical conditions,” which can include “harassment based on a woman’s reproductive decisions, such as decisions about contraception or abortion.”

Religious Expression
With respect to religious expression, the EEOC’s stated position on when such expression rises to the level of harassment is as follows: “If a religious employee attempts to persuade another employe of the correctness of his beliefs, the conduct is not necessarily objectively hostile. If, however, the employee objects to the discussion but the other employee nonetheless continues, a reasonable person in the complainant’s position may find it to be hostile.”  Acknowledging the need for “special consideration when balancing anti-harassment and accommodation obligations with respect to religious expression,” the EEOC states that “employers are not required to accommodate religious expression that creates, or reasonably threatens to create, a hostile work environment” and that employers “should take corrective action before the conduct becomes sufficiently severe or pervasive…”

Social Media
The EEOC also specifically addresses an employers’ obligation to address private social media activity if such conduct begins to seep into and affect the workplace: “Conduct that can affect the terms and conditions of employment, even though it does not occur in a work-related context, includes electronic communications using private phones, computers, or social media accounts, if it impacts the workplace.”  The EEOC specifically notes that social media posts on personal social media pages can contribute to a hostile work environment if “an employee learns about the post directly or other coworkers see the comment and discuss it at work.”  The EEOC also addresses revenge porn: “Given the proliferation of digital technology, it is increasingly likely that the non-consensual distribution of real or computer-generated intimate images using social media can contribute to a hostile work environment, if it impacts the workplace.”

While it is clear from this proposed guidance that employee comments on social media regarding, abortion, marriage, gender identity or sexual orientation may “impact the workplace,” the EEOC is silent as to how an employer should reconcile its obligation to address potential sexual harassment with the First Amendment ministerial exemption, Title VII’s religious organization exemption, or free speech protections. See e.g., Meriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021)(allowing challenge by a devout Christian professor at Shawnee State University to discipline awarded to him by the University for refusing to use a student’s preferred pronoun based on free-speech and free-exercise grounds). Employers should also exercise caution when addressing out-of-work conduct in light of the August 2023 National Labor Relations Board’s Stericycle decision, which promises heightened scrutiny of workplace policies that impose restrictions on employee speech, including private social media speech. Stericyle, Inc. v. Teamsters Local 628, 372 NLRB No. 113 (2023).

While the proposed guidance does not “have the force and effect of law” and is “not meant to bind the public in any way,” it is clear that the current proposed guidance is another step in the EEOC’s coordinated effort to expand growth and enforcement under the Biden administration. Employers should consult experienced labor and employment counsel regarding training and to ensure policies and procedures are updated before this guidance is finalized.