EEOC’s Workplace Harassment Guidance Misses the Mark on Religion

Employers have until Nov. 1 to submit comments in response to the Equal Employment Opportunity Commission’s proposed updated enforcement guidance on workplace harassment. While the commission could make some clarifications in response to public comments, it’s unlikely to make any material changes—so now is a good time to digest and operationalize the proposed guidance.

The proposed guidance includes specific steps employers can take to prevent and remedy harassment in terms of policies, complaint procedures, training, investigations, and corrective action. But the issue that underlies all the EEOC’s recommendations is what may constitute harassment.

Categories

The proposed guidance covers sexual harassment as well as harassment based on any other protected characteristic under Title VII or any other federal law. For example, it addresses racial and religious harassment under Title VII and age- and disability-based harassment under the ADEA and the ADA respectively.

Many employers’ prevention programs are heavy on sexual harassment and light on other kinds of harassing conduct. The guidance can be very helpful in making any necessary recalibration to avoid the reality and/or appearance that harassment on account of factors other than sex is just an afterthought.

Examples

The proposed guidance, which includes 350 footnotes, is rich with examples of harassing conduct. The changes to the current guidance, adopted almost 25 years ago in 1999, generally can be divided into 3 categories. First, there are changes based on developments in the law. For example, in light of the US Supreme Court’s decision in Bostock v. Clayton, the proposed guidance includes examples of harassment based on LGBTQ+ status.

One referenced example is “mis-gendering.” This occurs when someone intentionally (and repeatedly) uses a pronoun that’s inconsistent with an individual’s known gender identity.

But what if an employee has sincerely held religious objections to using a pronoun other than the one that corresponds with a co-worker’s biological sex at birth? Is the employer required to make a reasonable accommodation so the employee with the religious objection doesn’t have to use the co-worker’s “preferred” pronoun?

The EEOC’s proposed guidance doesn’t address this issue, but employers should anticipate it and be prepared with a response.

The religious beliefs in the above scenario can and should be accommodated in a way that isn’t disrespectful to the transgender employee. More specifically, the employee with the religious objection should refer to their coworker by name and not by pronoun. And, of course, the name used by the employee must be the name the co-worker uses.

However, the EEOC or another government agency may see the issue differently. The concern is if the transgender employee is often referred to differently from how other employees are referred.

Second, there are changes based on differences in how we work. For example, the proposed guidance addresses the increased reality of remote/virtual work and harassment that may arise out of such work.

The EEOC nails this issue, stating, “as with conduct within a physical work environment, conduct within a virtual work environment can contribute to a hostile work environment.” It cites examples such as “sexist comments made during a video meeting, racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting, or sexual comments made during a video meeting about a bed being near an employee in the video image.”

Finally, the proposed guidance includes harassing conduct that was less common 25 years ago but is more so now. For example, in response to the alarming rise of antisemitism, the proposed guidance includes examples of harassing conduct directed at or about Jews. While the inclusion of antisemitism is necessary and laudable, such examples tend to focus on antisemitism as hostility toward practicing individuals, rather than the broader Jewish people.

While employers should specifically address antisemitism in their preventive efforts, employers should address harassing conduct based on other religions, too. It’s my observation that religious harassment generally isn’t given adequate attention in policies and training. Now is a good time to remedy this.

If an employer focuses too narrowly on religion only, either in preventive or corrective actions, they may miss much of the harassment about or directed at employees of different faith, religious, and ethnic backgrounds.

State and Local Laws

Of course, the proposed guidance only focuses on federal law. But employers need to consider state and local laws, too. These may include protected characteristics that aren’t covered by federal law, such as marital status, familial status, and unemployment status.

Plus, protected characteristics may be defined more broadly under state law. For example, the Age Discrimination in Employment Act only protects employees if they are age 40 or over. In contrast, some states, such as New Jersey, prohibit discrimination (and thus harassment) related to age, regardless of the individual’s age. Thus, age-based harassment of a Gen Z employee based on their age wouldn’t violate federal law but may violate New Jersey state law.

State and local laws also must be considered in terms of what specific steps an employer must take as part of their preventive efforts. For example, only Illinois and Chicago have specific training requirements. An employer in Chicago must comply with both.

Of course, in their training and policies, employers should make clear, in all jurisdictions, that harassing conduct doesn’t need to rise to the level of illegality for corrective action to be taken.

Also, in taking corrective action, employers in all jurisdictions should try to avoid making legal conclusions that may be deemed admissions. There’s a big difference between conduct labeled as unlawful harassment versus offensive and unacceptable conduct under the company’s harassment policy.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Jonathan A. Segal is a partner with Duane Morris. A former litigator, his practice focuses on maximizing legal compliance and minimizing legal risk with an eye on culture.

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