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WithdrawallRedaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffITLE
RESTRICTION
001. memo
Carol H. Rasco to Donsia Strong re: EEOC Hearing (1 page)
61111994
P5
002. memo
Donsia Strong to Carol H. Rasco re: EEOC Hearing (2 pages)
6/111994
P5
003. memo
Claire Gonzales to Donsia Strong et al re: Background on Religious
Harassment Guidelines Issue (4 pages)
5/26/1994
P5
004. draft
Background on Proposed Consolidated Harassment Guidelines (7
pages)
5/25/1994
P5
005. memo
Donsia Strong to Katherine Darwin re: EEOC (1 page)
61711994
P5
0
COLLECTION:
Clinton Presidential Records
Domestic Policy Council
Stephen Warnath (Civil Rights)
OAlBox Number: 9592
FOLDER TITLE:
[Harassment Religious and Consolidated Guidelines] [1]
ds60
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Freedom of Information Act - [5 U.S.C. 552(b)]
PI National Security Classified Information [(a)(I) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRAJ
P3 Release would violate a Federal statute L(a)(3) of the PRA]
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P5 Release would disclose confidential advise between the President
and his advisors, or between such advisors [a)(5) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified informatio~ [(b)(I) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIAJ
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of .
financial institutions [(b)(8) of the FOIAJ
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
t. Closed in accordance with restrictions contained in donor's deed
of gift.
PRi\1. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
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DOCUMENT NO.
AND TYPE
001. memo
DATE
SUBJECTffITLE
Carol H. Rasco to Donsia Strong re: EEOC Hearing (1 page)
6/1/1994
RESTRICTION
P5
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COLLECTION:
Clinton Presidential Records
Domestic Policy Council
Stephen Warnath (Civil Rights)
OA/Box Number: 9592
FOLDER TITLE:
[Harassment - Religious and Consolidated Guidelines] [1]
ds60
RESTRICTION CODES
Presidential Records Act· [44 U.S.C. 2204(a)]
Freedom of Information Act· [5 U.S.c. 552(b)]
PI National Security Classified Information [(a)(I) ofthe PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential conunercial or
financial information [(a)(4) of the PRA]
P5 Release would disclose confidential advise between the President
and his advisors, or between such advisors [a)(5) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRAJ
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIAJ
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
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PRM. Personal record misfile defined in accordance with 44 U.s.C.
2201(3).
RR. Document will be reviewed upon request.
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�Withdrawal/Redaction Marker
Clinton Library
DOCUMENT NO.
AND TYPE
002. memo
DATE
SUBJECTffITLE
Donsia Strong to Carol H. Rasco re: EEOC Hearing (2 pages)
61111994
RESTRICTION
P5
This marker identifies the original location of the withdrawn item listed above.
For a complete list of items withdrawn from this folder, see the
WithdrawaIJRedaction Sheet at the front of the folder.
COLLECTION:
Clinton Presidential Records
Domestic Policy Council
Stephen Warnath (Civil Rights)
ONBox Number: 9592
FOLDER TITLE:
[Harassment - Religious and Consolidated Guidelines] [1]
ds60
RESTRICTION' CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act· [5 U.S.C. 552(b)]
PI National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
P5 Release would disclose confidential advise betwecn the President
and his advisors, or between such advisors [a)(5) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(1) of the FOIA]
b(2} Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�EEOC""
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5-31-:54: 4:54PM;
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202 456 7028:# 2
EEOC....
.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMM[SSION
Washington, D.C. 20507 -,
,t.JAy 3,1 .1994
, , #'
'
The Honorable Howell Heflin
Uni ted States Senate'
Washington, DC 20510":0.101
"
:
Dear Senator Heflj.n:,
. This ,is in response to, your, letter dated May 2, 1994"",
, ,,'expressing concern abou~theinclusion of religion, in our ,
Proposed' consolidated Guidelines on, Harassment Based on Race, .
'Color, Religion, Gender, National Origin,' Age or ' Disa.bility, 58
Fed. Reg. 51,266 (oct'. 1,1993).,' 'We appreciate your concerns and
.will 'address them in the process 'o~ revising and t;:larifying t,he' .
Prop,?sed' C;:onsol'idated ~uide,lines ~
'..
-,t
,"
.
,"
Some backQroundabout'theProposed Guidel~nes may be;
' They were issued in an effort to educate employers and'
employees about existing law' and,were not' intended to create·, any'
new obligations on employers. They were based on over twenty
,.years of case la",'and'Commissionprec~dent, as well as the
, Commission's, pre-existing. Guidelines on National' Origin" ,
Harassment, the Guidelines on Sexual Harassment 'and the' ,\
Commission's Policy GUldance on Sexual Harassment. " ",
helpfu~,.
Accordingly, ,the, Proposed Guid~lines are not de'slgned to"
, alter employees' e'xlstingrights,: to express religionin:the
workplace.' In facti under Title VII, ,the COmrilission:'can, only:,
issue interpretive Gtiidelin~si:tts rules dooot have, the' force or
ef,fect of law.
' , ".
,
,,
As you are aware, in'enactingTitle VII of, the' Civii,Rights
Act of 1.964~ as amended, 42 U.S.C. § ..2 000e II seg" Congress
prohibited discrimination',onthe,ba,sis of race, color", religion,
gender.ornatio:p.alorig:i.n. The S~preme Court has repeatedly
noted that Tit1e VII "on its 'face treats each of the ,enumerated
categories exactly·the,same. " , 'price Waterhouse'V.HopkiDS~· 490'
U.S. 228, 242 n.9 (1989) (Bre~an" J.~ plurality)') ~'Harris v.
Forklift Sys. « Inc., 114 So' Ct. 3'67~371 (1993).
'
a
Title VII',s ban against discrimination includes
prohibition on :discriminato:rY' "term~"conditions,· orpZ;ivileges,
of employment .... ,For over. tw~nty years the federal courts and the
Commission have held that harassment based ona statutorily'
.' ,
protected classification is,a discrimiriatory term or condi1;ion of·
, employment and thus is prohibited'<byTitle VII~ . 'l'larassment ba!!;led,'
�5-31-94
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~
The Honor?lbleHowell ~ef.lin
Page'Two'
on religion violates the law in.the same ,manner as harassment
'based on other protected bases'. ,'See, ~" Weiss v. United
States, 595 'F. Supp. 1050, 1056 (E~D~Va. '1984) ("when an employee
is repeatedly,subjectedtodemeaning and offensive ,reli:giou13
slurs;bef.orehis fellows by a co-worker and by his supervisor, .
such a.ctivity riecess~rily has'· ~he effect:' of altering t h e .
conditions of 'hi's employment wIthin the meaning of Title VII"·) .
We note your concern that 'the Commission cited Mer1tor
Savings' Bank Va' Vinson. 477 U.S. 57 (1986), a case involving
sexual, harassment, 'forthe proposition that "Title VII affords.
employees the right to work in an environment free from
.'
discriminatory intimidatiqn~ insult, ,and ridicule. \I While
, Meri tor did involve
cause of, action based on sexual harassment,
theC!0urt indicated that it wq.s' applyirigprinciplesapp'l}.cabJ.~e to
other bases covered by Title VII. ' The Court' specifically
endorsed the.principle that creation of a' hostile environment:
based on discriminatory racial, "li9ious,; national., origin/or,
sex~.ull harassment'.constit.utes a violation of, Title VII.
See' i.d., '
at 66. "It ,should be noted that,' rr\orerecently, the Court in'
Harris v.Forklift Sys .• Inc~;114·:S. Ct .. 367. 371 (1993),;
reiterated the'positionthat narassmemt on' the basis, of race.
color. religion, ,gender or national origin constitutes a
violation of Title VII.' ~e also ida at 373 ,'(Ginsburg. J.,
concurring) (IiTitle VII declares" discriminatory practices 'based on
race, gerider ,religion, or national origin equally unlawful,II),.
. .
.
.
a
."
,
. '
'.
. Baseq on some of theearli<estcomnuants on the ,Proposed
Guidelines that the Commission received, the ,agency understood,'
that there was 'concern that the Guidelines could be misconstrued"
to' broadly suppress religious expression in a manner that the'
'Commission did not int~nd.,Indeedi'as Commission. staff explained'
to representatives of several Christian Qrganizations,any such
broad prohibition on religious expression or apparel could'
violate Title'VIl's,requirement that 'employers accommodate
employees' requests.to "exercise rel'igion, unless doing' so would
be an undue hardship. Thus,. from the outset, the Commission has
intended' to addre,ss these concerns.'
You have askeidus whether 'a ntiml:>er ~f specific Situations :
,wou14,constitute harassmerit. ,It is important to 'note that ,our'
answers' t,oehese qUEistions_<are based:'\lPon our ,understanding;, of'
, existIng law.· The answers tot'hem-will 'remain constant whether
or not the Gui.delines'·exist~: As explained above, ,the Guidelines
. were intended. to explain;.:.:,rather, t'han,change', existing law. '
.
:"
,
"
We' also point out that, iike harassment" on other bases •. '
religious, harassrnentwiil not be found :u'nless the challenged
'cond\.1.ct is hostile or denigrating on the basis of religiort'andis
,sufficiently severec'and pervasive to alter the conditions~f.·
empl'oyment. The Commission recognizes that expressing one';sown
�~ENT
202 456 7028:# 4
EEOC...
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BYI: .'
tLa.. ",,~dc.. ~I-
The ..HonorableHowell .Heflin
Page'Three
~
'7
7:vt.-ill.
beliefs is far different 'than disp'aragingth~ religion or beliefs
of others.'
,
.......
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.•
• I
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More specifically,we .will' addl;ess Your.quest1onsser~.atim:
1)
Would ,a foreman or .supervisor be' abletowea'r a cross;' a
relLgious symbo~ su~ha8 a. Christian fish, or a Se.Cliristopher
Medal,' and may an mriployee,wear a yarmulke? It is not. religious
hat::as~ment ·for a.supervisoror a co'':''worker merely to 'state .. " '. .
his/her religious, affiliation~ Nor is it religious harassment
wherr an individual wears a badge of.religion,a yarmulke, a
,turban or it cross to .work,· .even if that . individual .is a foreman
or a supervisor.A_reasonable.pe~son would not find ,that such '
conduct ,rises ·to tllelevel 'ofnarassment. Inde~d.'ritle VII. .
requires an employer.to p.ccommodate employees'exercise'pftheir
religion unless' doing so .would create. an. undue hardship ~~ ThUs,
the Commission has. consistently supported'employees' 'rights to
wear,religiousg,arb .. ;.'
"
Ar~ religious holidays allowed·?
This, too, is an "
2)
a.ccommodation,issue. The 'Commission has' frequently sued
employers who declinedto'grantemployecs'time off to practice
. heir religion ~Certainly taking, a. 'religious' holiday would not
t
be.considered'harassment bya.reasonable individual.-':' it"l.n no
way infringes on anyone eJ-se"s rights.
.
c'
••
'
•
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•
•
3). 'Can a business offerJl\oreholi:dayafor one faith than
another? Initially,we'note .thatthis is not a harassment iSBue
, ·and that ordinary.p:i:Jnciples of discrim;ination would apply in
such: an instance. It an employer permitted ihdividualsof one·
fa'lth to obserVe'. its. holidays while denying that right to'
individuals' of different.. faiths, a cause of action for .
discrimination may 'be asserted. As Icing as all individuals are
allowed to'take time.o~fto ob~erve their religion when doing so·
creates no undue hardship,·.then Title VII'wouldnot be violated.
.
,
".
'.
'
.."
4)
May aforemaD 8ell tickets.to a church pancake b~aakfa.t?
As noted above; .the alleged· conduct must be severe or pervasive
enough to create a hostile or.abusive 'environment in order to
. constitute a violation of Title VII., Thus,ifan"employer 'or
'supervisor speaks of.religionperio'dically, asks anotheremp16yee
to worship with him/her or sells tickets to a church function, it
.is unlikely.thatcourts .wQuldfj.nd a violation of Title VII. .
Your qUe'st.fori-· recognizesthat:"some conduct can ,be more c.... . '
threatening or coercive when engaged in by a supervisor than by a
co-worker. Theref9re, if the employer or supervisor' continually
solicits fel·low" employees to worship· with him/her even after
his/her requests have repeatedly been rejected or if the emp'loyer
�SENT BY,: .
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4:56PM
EEOC~
202 456 7028:# 5
'
The Honorable Howell Heflin
Page Four
or supervisor bombards employees with religious materials
although employees have indicated they are not interested in
receiving such information, courts may find that a hostile
environment has been created.
5)
May a business employ a chaplain? Again, this is''not an
issue of harassment. A business can choose to employ any
individual for any position that it .. so chooses without running
afoul of Title VII.
May employees at a business conduct a weekly prayer
breakfast in which supervisors participate with some, but not
all, employees? We note that at least one court has concluded
6)
that Title VII is not violated when an employer conducts Bible
study meetings in the workplace, as long as the employer. doe$not
require employees to attend and does not take adverse action~
against those employees who choose not to attend. See EEOC v.
Townley Engineering & MfS. Co., 8S9 F.2d 610 (9th Cir. 1988).
Accordingly, the Commission believes that conducting Bible study
or prayer meetings in the workplace would not, in and of itself,
constitute a violation of Title VII.
7)
Could an officer of a company have a Bible on his/her office
desk? A reasonable person would not find the placement of a
Bible, the Koran or any other religious text on another
individual's desk to create a hostile or abusive environment.
Therefore it would not be religious harassment for an individual
to keep such a religious document on his/her desk.
S),
Can athletes still kneel and make the sign of the cross in
celebration of some accomplishment.? It is worth reiterating
that Title VII applies only to employment. Thus, our response
refers to athletic events related to the workplace. Here again,
making the sign of a cross would not be considered hostile or
abusive conduct that was so severe or pervasive that a reasonable
person could find that a hostile environment was created.
You suggest that application of the "reasonabl
the same or similar circumstances test M will burden
requiring them to consider the religion of every sin
the workplace. Again, we note that harassment law
w
be implicated by expression that does not denigrate
.
hostility toward those with other beliefs.
Many commentors have expressed concern about th
it is clearly one that needs to be addressed in any
Guidelines. However, some background may be useful
S:y,pr_eme::::~ourt' has made clear that the question of wh
is sufficiently severe or pervasive to create a host"
environment will be judged from the standpoint of the
person.
CLINTON LIBRARY
PHOTOCOPY
�202 456 7028;# 5
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SENT B1I: •
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The Honorable Howell Heflin
Page .Four
.....
or Bupervis'or bombards employees with religious materials"..
although employees have indicated they are not interef?ted in
receiving such information, courts may findthat.·a hostile
environment has been created.
'
May a business employ a chaplain? :Again, this is''riot an'
, issue 6f harassment. A business can choose to employ any
individual for any position that it,so~hooses without running
afoul of Title VII.
S)
6)
'May employees at "a business conduct a weekly prayer
hreakfast i:nwhich Bupervisorsparticipate with'some, but :not
'all; employees? .We note 'that at. least one . court has concluded
that Title 'VII is not violated when an 'employer 'conducts Bible
study meetings in the workplace, as long as the employer. doeE;l not
,require employees to attend and does not take adverse action --'
against those employees who choose not to attend. ,See E..EOC v.
ToWnley Engineering & Mfg! Co. I 859 F .. 2d 610 (9th Cir. 1988).
Accordingly,' the Commission believes. that' conducti ng .Bible study ..
or prayer meetings in the workplace would not, in and of itself,
constitute a violation of Title.VIIi.'
.
.
:7) , Could anofficar of a company have; a Bible on his/her office
'desk? 'A reasonable person.would not find the placement of a
Bible, the Koran or any other religious: text on another '
. individual's' desk t.o create "a hostile or abusive environment.
Therefore it would not be religious harassment for an individual'
to keep. such' a religious document on his/her desk.
...
.
,
.
.
S)'/
Can athletes atill kneel and make the sign of the cross in.'
'ce'lebration of some accomplishment's?', It is. worth reiterating ".
that. Title VII applies only to employment. Thus,. our response
refers, to athletic. events related to the. W'orkp1act!!!. .' Here again
making the sign of a.cross would not be consider~d hostile or
abusive conduct that was so severe or p'ervasive that a reasonable
pe:r:son could find that a.hostile environment was created .
.
.
I
,
'
'
. . ' You suggest that application, of the lI.reasonable person. in '.
the same or similar circumstances test R will burden employers by.
requiring them·to consider therelj,gion of every single person in
. the workplace. Again; we note that harassment law would not: even
be implicated byexpreasion that does not denigrate or show
host~lity toward those with other beliefs .
.
..
. .
\
Manycommentorshave expressed concern about this issue and
it is clearly one that needs to be addressed in any final
Guidelines.
However,' some background may be useful to you. _ The
Sypr_em~.::Court has made "clear that the question of whether conduct
is sufficiently severe or pervasive to 'create a hostile.
environment will be j)ldged from the standpoint of the re~riabl~
~a~.·
~"".,
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" ..
The Honorable Howell Heflin,
Page Five
on
In 1990, in its Policy Guidance
Sexual, Harassment, the
Commission stated that "[t]he reasollable p~J'~on standard should
consider the victim.#s, perspective and not stereotyped notioris of
acceptable behavior." , "current Issues or Sexual, Harassment-; II
EEOC Policy Guidance No. N':915-050 at 15, CCH l' 3112 (Mar.-19,
,1990). In discussing ,the issue t the, Commission noted t-he dissent
, of Judge Keith' in Rabidue v. Osceola Refining Co. 805 F. 2d 611"
(6th ,Cir. 1986) # cert,. denied, 481 U.S. 1041 (1987)~" Judge Keith
stated, iIi relevant part ,that he "would have courts adopt the
perspective of the reas,onable victim which simultaneously allows
courts to consider, salient sociological differences as well as
shield employers from the neurotic complainant[; otherwise] the
defendants as well as the courts are permitted to ,sustain
ingrained ~otions of reasonable behavior fashioned by the
offenders . . '. ." Id.at6'26. {citation omitted)'.'
- ~
I'
The' Commission~~_Policy Guidance makes' clear that its
standard is ani/objective 'one and is, not a "'vehicle for .
vindicating the-pet:ty~~sli9hts suffered by the hypersensitive.'
"Current Issues of Sexual: Bar,assment," at 14 (quoting Zabkowicz
v, West Bend Co., 589F. SUppa 780 (E.D. Wisc. 1984). In other
words" the Guideliries.' admonition to 'considerthe .perspective of
the victim ,is merely intended to remind triers of fact to take
into account' historical 'discrimination against particular groups.
,It is clear forexarnple·that placing a noose in the ,workplace is
likely to have a psy.chological impact on, African Americans not '
shared by Whites'~Because this point has, been misunderstood, '
however, some clarifications and revisions are ,in order.
II
With respect, to the Rel..:igi-;u9 ,F~~edo_iil~ ReS:tQ~~tio.n ~ct,we
note that at the, ,time the Notice of Prop O's ed Rl:i.lemakiilg'was
issued, the Religious Freedom Restoration Act had not yet been'
enacted. Accordingly, as we review. the Guidelines we will
consider what, impact;'i! any, the,Religious Freedom Restoration
Act will have on them..
.
i
Finally, your letter suggeste that itmaybeadvi~able to
delete religion '.from the Guidelines. The Commission is
considering your suggestion. We note, however, that ,the' purpose
of the Guidelines iato inform employers and employees of their
respective responsibilities and rights ~ EV~.~_ if .the Guidelines
do not; mention r~ligi.on,~mployers"a:re, asa matter of law,
obliged·to'maintaina:workplace'free of,~~ligious_ha::r~sBment.
Unfortunately; religious harassment'does occur. Case law
,
," documents instances of .Jewish employees being taunted as "Chril;Jt
killers" and being subjected to "jokes" about the holocaust.
Similarly, if an individual is repeatedly taunted and denig~at:ed
because s/he attends church ona regular basis or has professed
devotion to a Supreme Being , a hostile environment on the, basis,
of religion may have been created under existing law.
..,."..
~-.
�.SENT ,8r-:•
..
•
,(
EEOC...
5-31-94 ;' 4:57PM'
.
"
'
202456 7028;# 7
~
The Honorable Howell Heflin
Page
~ix"
,
We appreciate all of your.: comments~ 'They will' be quite
'..,'
, helpful in 'our deliberations., , We, hope that ,this respons'e, ha.:s
been ot assistance to you. 'If ,you have any further questions
pleas,e do not' hesitate to contact us.
_
l
, ,sincerely,
~
.'''''~~'
,
, 'r " ,
.
,
,
.
Claire Gonzales
'
'Director of Communications
arid L7gisla'tive Affairs
.
.'
.
'"
>
,
;
•
.
.
, .
'
�EEOC""
6- 3-94 ; 4:07PM :
,SENT. BY:
V... 3 ...&1 bplo.,..e:a:t opportul tJ coai•• ioll
"j
'~ "
202 456 7028:# 1
Jhvt: LJ"
Of tic. of Coaauaicatioa. aD4 Lei1.1ative Affaira
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all 4oatllUU'lt..
'
'
�6- 3-94
SENT. BY:
ProPO~.4
202 456 7028:# 2
EEOC'"
4:07PM
Consolidate4 Bar••••eDt Guldeline.
Thank you for providing the opportunity to discuss the.Equal
Employment
Opportunity
Commission's
Proposed
Consolidated
My comments today will be necessarily
Guidelines' on Harassment.
limited because the comment period on these GU,idelines is still
o~n
and the comments will have to be evaluated before any final
decisions can .be made..
'As' you know, on October I, 1993, the
Commission published a Notice of Proposed Rulemaking in the Federal
Register promulgating Proposed Guidelines ,on Harassment Based on
ita,:e, Color"Religion,' Gender, National Origin, Age or Disability
and
I
invited public comment.
The original comment period ran for
sixty days and,. due to an unexpected interest in the Guidelines
after the. comment period closed,
the commission extended the
comment'periC)d to June 13, 1994.
There .has been a lot of c'onfusion about the purpose and effect
of the Proposed Guidelines, as veIl as the law on which they are
based r with regard to religious harassment.
This has. prompted an
outpouring of concern by thousands of Americans who care deeply
about religious freedom, and we are grateful for the opportunity to
set the record straight.
The gist of the
critici~m
leVeled.atthe inclusion of religion
in the Proposed Cuidelines is that it represents an attempt by the
Commission to artiCUlate a new rule desiqned to suppress religious
1
�EEOC.. .
6- :3.,.944:08PM ;
SENT BY:
expression by employees in the workplace.
As you know,
This is simply wrong'.
for thirty years Tltle VII has protected this
,
,
202 456 7028:# :3
,
country's workers from discrimination in employment. on the basis· of
their religious beliefs.
The Commission has strongly defended the
right of employees to exercise their religion in the workplace,
even when employers have found it inconvenient to accommodate those
beliefs.
As
oriCJin~lly
enacted by Congress, Title VII of the Civil
Rights Act of 1964 prohibits employment discrimination on the bases
of race, color, religion, 'sex and national origin.
Congress has
also afforded employees protection against discrimination on the
bases of age and, 'more recently, disability.
From its inception,
Title VII has prohibited discrimination that affects hiring, firing
or other
tang~ble,
job benefits.
In construing Title VII, 'courts
have consistently held that· it also protects employees who are .
subjected to severe or pervasive hostility because of their race,
religion, or other covered bases.
harassment.
The Supreme Court
~n
'.That is' the definition of
Heritor, Savings v. Vinson, 477
U.. S. 57, 66 (1986) and in Harris v.Forklift Systems, 62 U:"S. L.W.
"004,4005 (November 9, 199,3) has ,held that harassment· violates
Title VII', and that Title VII applies to all of the statutorily
covered bases.
To clear up the misunderstandings surrounding the Proposed
Guidelines, it may be 'helpful to provide some historical context.
2
�.~
202 456 7028;#. 4
EEOC.....
6- 3-94 : 4:08PM
SENT. BY:
.
The primary. force behind tl1e initiation of the Guidelines was
former Commissioner Joy Cberian who was concerned about the.lack of
quldance on the sUbject of racial harassment.
. Prior to the
de~elop.entof the Proposed Guidelines, the Commission had issued
.
"
, separate Guidelines for only sexual and '~ational origin harassment.
Instead of 'continuing to address harassment on a piecemeal basis"
tbe,COJDDlission determined that· guidelines ,addressing all protected.
bases
of
prohibited
harassment
in
the 'workplac:e
should
be
devf:11oped.
.
"
In
~raftin9.
the Proposed Consolidated Gu1delines,
EEOC's
Office of Leqal Counsel' sought to cons,olidate, twenty years of
judicial and'" coimission'precedent.
. intended to
create
expl~in
new,' legal
The proposed Guidelines were
and interpret existing law rather than to
theories.
The
Commission
simply
combined
information and interpretations that,courts and the Commission had
articulated
£o~
many years.
Conduct that, denigrates personal characteristics such as race,' ;
reliqion, or qender ls. never, nice or pleasant to experience, but it
is not always' unlawful.
,
.
The. established. body of. law d.oes not
"
"
"
-
.
'
protect employeesfromev.ry· insult.or offense that comes their way
.
and
it
does
complaint.
not
"
'
coveJ::' .. thehypersensitive
Xbe Supreme court has made
cl~ar
·is . unlawful only wben it is unwelcome
employee's
every
that harassing conduct'
and when it severely or
pervasively denigrates or shows' hostility on the basis of race,
3
�SENT BY:
'6:- 3-94,
religion~
4 : 08PM ;
. EEOC.... : '
gender, na.tional origin, age or
,workplace harassment,recognizes
t~at
"202 456 7028;# 5
disability~
The law of
when conduct is severely or
pervasively abusive, because of one of those protected bases, it
"offends Title VII's broad rUle o'f workplace equality".
Harris v.
,
'Zo.l'lslift 'systems"
62
U.S.
L.W.
suggestions by their, critics,
at 4005.
Thus"
the Proposed Guidelines, do not
.. provide that it would be unlawful to wear a ,cz:oss or
have
ill
,
contrary "to
~o
Bible on,'your desk or invite a colleaque
ill,
y~~ulke,
church.
Such
actions would be ne.1ther hostile nor severe nor pervasive.
The
Commission appreciates the concern, that overly cautious employers
may'misconstrue the Proposed Guidelines' and resort to .blanket
'prohibitions ·of
liability.
religious
expression, to . avoid' any, possible
Not . only are the Proposed
Guidelin~sno:t int~nded
to
create such result, such a broad policy WQUl,d likely run afoul of
.
.
.
.
'
, Title VII's requirement that employers reasonably accommodate an
employee"s religic,us'" exercise unless doing sowo~ld be an., undue
.
.
.
hardship.
"
~y
final Guidelines could make clear that such blanket'
prohibitions are 'neither required 'nor permissible.
com.mission staff acknowledge that. commento;rs have raised some
valid concerns.
,
••
The
For example:
'0.
Proposed': Guidelines
definit.ion
of
harassment
incluc1es; 'as' one of. three . d~finitions ,.,conduct· that
~.
,
.'
,
."
'
.
'
,
'
"otherwl.se adversely affects employment opportunities."
[§l609~1(b)
(l)(iii) 1. ,'This lanquage ,w3staken directly
�,
SENT BY:
202 456 7028;# 6
.EEOC'"
6- 3,-94 ; 4: 09PM
trom the Guidelines ,.onNational origin harassment that
have been in' effect since 1980.
critics are correct,
however,' in stating that courts have nO,t used this
'. language.
Hence,. thec'oncern that the languaqe 'might be '
misconstrued as an attempt to create a new category of
harassmentis'Yell,taken.
, • ..
. Much of the '~>ri tieism focuses on the Proposed Guidelines'
articulation o~ the "rea'sonable per,son tl standard used in
determining whether
[§ ·1609.1 (c)]..
a
hostile work ,environment exists.
This standard for' "reasonable' person"
allows "consideration of the perspective of persons of'
the allegedvietilll'& race, :••• religion, etc." ','
critics argue .that,thismay be,interpreted to mean that
,
..
.
.
. ~lleged harassing ,conduct "ill' be judged solely from
the
'subjective,
of
the
that
the
.and:. ever· changing,
~
compla1n1ng party.
•
Of
•
'.
T~ey
standpoint
furt.her 'contend
standard is so subjective and vague that. wary employers
will feel forced to prohibit any religious expression in
tqeworkplace rather than 'risk
anyone.
offeridi~9'
In: articulatlng the standard, the Commission's intent was
to ·retain
perspective
an
objective
while
rather. than
taking
"
account
a
of
discrimination aimed. at various groups.
5
subjective
historical
It was not
�6-
SENT BY:
EEOC.. .
4:09PM
3~94
intended ..to 'provide
special
.' 202 456 7028:# 7
.protection
for
'the
hypersensitive employee. Given the amount of controversy
generated by this provision, howeveri it is clear that
. he langu8:;e Should' be revised to more' accurately reflect
t
the inten?ed meaning.
••
Tbere has also been ,a substantial amount of comment on
that
portion. of
the
definition
of
harassment
tbat
includes hostility toward an individual, because of a
covered characteristic of their relatives or associates.
Some commentorsbave misconstrued
this.~an9uaCJe
to mean
that an employee'sasso.ciates can bring suit aqainst an
employer.. Its· intent was simply that.an employee' ·has a
.
"
"
claim under anti-discrimination laws if s/he 1s subjected
. to severe or perVa~ive ,hostility. because, for example,
he/she
is married to ,a person
of another race· or
religion ...
••
The final
and: overarchingconcern expressed
in the
comments is the interaction of the Proposed'Guidelines
and 'the First. Amendment right
religion.
Amendment
of . , free
exercise of
The, Commission is sensitive to the First
concerns, that
have
been
raised
by
the
Guidelines' critics~ , During the original comment period
in the fall, some of the eighty-six ,'comments received
focused "on whether the, inclusion of religion in the
�'. 6- 3-94
SENT BY:
Proposed
guarantee
Guidelines
of
free
202 456 7028:# 8
EEOC~
4: 09PM
violated
the
exercise.
First
Legal
Amendment's
Counsel .staff
immediately began and is continuing to explore the First
AlDendment issue.
Many
critics
are
particularly
concerned
that
the
Guidelines conflict with the recently enacted Religious
Freedom Restoration Act (RFRA).
RFRA qenerally provides
that the government may not substantially burden free
exercise, even by a neutral rule, unless the government
has a compelling interest and does so using the least
restrictive means.
RFRA had not been enacted when the
Guidelines were originally published for comment. RFRA"s
potential impact on the. Proposed Guidelines 1s being
-
analyzed by Legal Counsel and will certainly be addressed
by the Commission during
i tsreconsideration of the
Proposed Guidelines.
In
order to understand and respond to these and'other concerns
involving the inclusion of religion in the Proposed Guidelines,
commission staff have met with representatives of several interest
groups, including an "Ad Hoc Coalition" composed of the Traditional
Values
Coalition,
the Family Research
Association of Evangelicals,
Council,
the Center' for
the
Law' ,
Na~ional
Religious
Freedom, the Christian Legal society, the Amer-ican Civil Liberties
union. The representatives at that February 24th meeting
7
expre~sed
I
�6-, 3-94
SENT BY:
concern that
the
Proposed
202 456 7028;# 9
'EEOC...
4:10PM ;
Guidelines
were
overly
broad
and
ultimately would force employers wishing to avoid liability to ban
religion from the workplace "entire.ly.·
Several· representatives
suggested that religion. should. be. removed from the Guidelines ..
On March 18, 1994, ColD.lBission staff met with another group of·
religious and civil,liberties organizations that ~ argued
that
removinC] religion from the Proposed Guidelines would send, the wrong
signal to employers by undermining Title VII's. protection of
religious .expression
in 'the
workplace.
. Among, the
groups
represented in that meeting were the Baptist Joint Committee,· the
American' Jewish Congres's,: the General Conference of ,Seventh-day'
Adventists, the American Jewish Committee,' the Anti-Defamation
League of D'nai B'rith and peoplefo~
the
American Way. 'It should
be noted that those representatives also expressed concern that, as
proposed,
portions
of'
the
Guidelines
'were
subject
to
misinterpretation. 'l'bey 6ugg4!sted. that· any problems with vagueness
could best be solved by including specific examples of what does
and does not constitute prohibited religious harassment.
Through
the
coiUnents
received.,
the
Commission
better
understands the ,proposed. Guidelines' . strengths . an.d weaknesses,
particularly in terms of how the public might construe them.
·comments have made the point well
t~at
The
some parts of the proposed
Guidelines aight be interpreted far differently than the' Commission,
intended..
We are continuing to receive, analyze and evaluate the
8
"
�"
comments.
202 456 7028:#10
EEOC...
6- 3-94 ; 4:10PM
SENT BY:
One effective response to these concernsmiqht be to
revise the language in any final Guidelines to, clarify the intended
meaning' and
to
inolude easy to' understand
examples' of both
permissible and prohibited conduct.
Althougb deletion of religion from the Proposed Guidelines
seems like a simple solution, Commission" staff' remain. extremely
cautious,' about t.reating one' protected basis' differently than all
others.
Religious discrimination,
including harassment,
unfortunate reality in todayls' workplace.,
weaken
the' protections
afforded
by
is an,
Any action 'that would
Title
VII
for
relic;ion
expression should be very closely examined.
,'One of the most critical elements of the Commission's mandate
lathe education of employers and employees about applicable law in
T~e
the area of employment discrimination.
,
"
Propos$d Guidelines
were intended to explainexistinq, law, in, the complex area of
harassment, and the principles set, forth are neither, new nor solely
the creation of the commission.
The EEOC is deeply committed to
promoting equal employment, opportunities for all people in this
society. ' Properly understood and applied, ant~-harassment, law can
,
be a tool that helps employers provide working conditions in Which
people
of ,diverse beliefs and backqrounds
productively.
9
can' work together.
�" ,SENT BY:
.. " .
EEOC....
6- 3-:-94, 4:HPM
.'
202 456 7028;#11
,
,I . vouldbe glad .toanswer any' questions
you may· have
0
However, bec:ause we are still in the. comment. perIod and 'because any .
.
'
,
action on tbese Proposed Guidelines 'requires approval by the full,
f
Commission, it would be inapproprIate to commit at' this, time to any
/
conclusions concerning or, suggeste.d 'cha~9'es to the Guidelines.
(
10
�WithdrawallRedaction Marker
Clinton Library
DOCUMENT NO.
AND TYPE
003. memo
DATE
SUBJECTffITLE
Claire Gonzales to Donsia Strong et al re: Background on Religious
Harassment Guidelines Issue (4 pages)
5126/1994
RESTRICTION
P5
This marker identifies the original location of the withdrawn item listed above.
Fora complete list of items withdrawn from this folder, see the
WithdrawaVRedaction Sheet at the front of the folder.
COLLECTION:
Clinton Presidential Records
Domestic Policy Council
Stephen Warnath (Civil Rights)
OA/Box Number: 9592
FOLDER TITLE:
[Harassment - Religious and Consolidated Guidelines] [1]
ds60
RESTRICTION" CODES
Presidential Records Act· [44 U.S.C. 2204(a)]
Freedom of Wormation Act· [5 U.S.c. 552(b)]
PI National Security Classified Information [(a)(I) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential conunercial or
financial information [(a)(4) of the PRA]
P5 Release would disclose confidential advise between the President
and hi~ advisors, or between such advisors [a)(5) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRAJ
b(l) National security classified information [(b)(l) of the FOlA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the J;'OIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOlA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOlA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) ofthe FOlA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOlA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�THE WHITE HOUSE
'
WASHINGTON
~
I
I
,
�Withdrawal/Redaction Marker
Clinton Library
DOCUMENT NO.
AND TYPE
004. draft
DATE
SUBJECTlfITLE
Background on Proposed Consolidated Harassment Guidelines (7
pages)
5125/1994
RESTRICTION
P5
This marker identifies the original location of the withdrawn item listed above.
For a complete list of items withdrawn from this folder, see the
WithdrawaVRedaction Sheet at the front of the folder.
COLLECTION:
Clinton Presidential Records
Domestic Policy Council
Stephen Warnath (Civil Rights)
OA/Box Number: 9592
FOLDER TITLE:
[Harassment - Religious and Consolidated Guidelines] [1]
ds60
RESTRICTION CODES
Presidential Records Act· [44 U.S.C. 2204(a)]
Freedom of Information Act· [5 U.S.c. 552(b)]
PI National Security Classified Information [(a)(I) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA)
P5 Release would disclose confidential advise between the President
and his advisors, or between such advisors [a)(5) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade s~crets or confidentiai or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfIle defined in accordance with 44 U.s.c.
2201(3).
RR. Document will be reviewed upon request.
�'.
'
• ' • • or
• i
..
51266
Fedeiial Register I Vol.S8. No. 1b9 I Friday. October 1. 1993 I.~posed Rules '
I
, 4'Heat1ng Degree Days'" the phi'ase"and
0:Kl1ing Degree Days",
'D8ted: AlJ8I1,It 17, 1993.
,..,hSbul.diDer. ' .
,.
AssJdant Secretoryfor PUblkand Indian
CounseL EEOC, 1801 L Street. NW•• '
Washington. OC20501; telephone (202)
'663-4619 (voice) or (202) 663-7026
'
,(TDD).
,
,
, 8UPPI..EMEN"tARY INFORMATION: This
propOSed rule is not er.ilajorrule for
purpose of Executive Order 12291.
'
The Commission has long recognized
, ·that harassment on the basis of race.
color. religion, sex. or national origin,
violates section 703 of title vn of the
, EQUAL EMPLOYMENT OPPORTUNITY Civil Rights Act of 1964, as amended. 42
COMMISSION
U.s.c. 20008 et seq. (title W). The
'
'28 CFR P-1J1!!,Commission has also recognized that '
.n harassment ba$ed on 888 is prohibited
GuldeDn.. on Ha,.,ament Baeed on
by the Age Discrimination in
Race, Color, Renglon., Oencter. NatIonal Employment Act of 1967. as amended. '
OIIgln, Age. or DI..bfllty.,
29 U~.c. 621. WI· (ADEA). The '
,
,
. . ..,. ' ' Commission l:U/.s Interpreted the .
AGENCY: Equal Employmant
. .:. Rehabilitation Act of 1973. as amended,
.29 U.S.c. 101 e( Ieq.; and the Ameiicans
, OpportunJty Commission lEEOCl.
ACTION: Notice ofpioposed rulemU.tng. with Disabilitie. Act of 1990. 42 U.s.C. ,
,
"
12101 fit 1fHl. (ADA). as prohibiting
8UIIIWm The Equal Employmant
harassment based on a person's
Opportunity Commission is lssu1ng
disability. Rsgardlng'the ADA. see
Guidelines covering harassment that is
5163().12 aftn.'Commission's
based upon raea. color. religion. Bender regu1atiQD5 on Equal Employment
, (excluding harassment that is sexual In ' ()p~rtunJty for indiViduals With
Datu.re. which is covered by the ' .
Dfsabilities. 56 FR 35.737 (1991)
Commission', GuidelineS on
" , (codified at 29 Q'R 1630.12) (1992).
Disatmlnation Because of Sex). aationa1
For more thaD twenty years. the
orlgiD, . ' disability. The
.,..,' .lederal cowta have held that haraSsment
Commisslon has determined that i t ·
violitea the statutory prohibition' against
woUld be useful to have CODIOlidated
cI1scrimiDation In the tws and
,
RUldelinei that let ~ the IItaDdanls . :CoQditiona ofemplOJDienll The'
lor determlDl1lB whether CODduct In the Commission has hela and continues to
wOrkplace constitutes illepl hll'USlD8Dt hold that an employer has a duty to .
,under the variou anticl1Jc:rim.1natlon
malntabi a~worfdng environment flee of
"
statutes. Thus, these Guidel1neslwassment basad on race. color.
:u~rH' I8X. national origin. age, ·or
consolidate, clarlfy and explfcate the "
Commission', position on a number of
ty. and that the duty requires '
'IssUes relating to harusment. The
. positive action where neCessary to
Guidelines supersede the Commlsslon". eUminate auch practices or remedy their
, Guidelines on DisaimiDation Betause
effects. The CoimDission has previously
IIsued gUidelines on lex-based
ofNationaJ Origin.
DAlES: Comments must be l!908iwd by
harassriient that is sexual in nature,
November 30, 1993.
'EEOC Gui~elines on Discrimination
'MOAESSES: Comments should be
Because of Sex. 29 CFR 1604.~~ (1992),
addressed to the Office of the Executive ad guidelines on national ongm·
Sec::retariat. EEOC. 10th Floor. 1801 L
' haraSitJtent. EEOC Guidelines on
Street.NW•• WasbiIlgton•. DC20507,
Discr1m1natlon BeCause ofNational
tea of commentslubmitted bv the "OrIain. 29 c:FR 1606.8 (1.992). •
,
,oJ
'-or aeveril ree.sons. the ColDlDlSSlon
lie will ~ available for review at the has determined that there II. Deed for
Commission ,library. room 6502. t801 'DeW pldalinea that emphasize that
L Street. NW•• Wasblnston. DC. between
'
..
the hours of 9:30 LID. ad 5 p.m. Copies
................. aoc. '54 P.2d 2M (Sth Dr.
of this Dotice ofpro1)088d rulemek1n8 ' '1'11) (...,.... 0I~. pili'" OIl die
ereavallable In the following altemative .... of aatloDal orIsID could CNI" clUaimiaatory
l'urmats: I.arp print. braille. electronic
Wodr.'.ftIoiImmt b SPlDl&b4lftlllMlCl_ployee
eJ
.1:_1..
. . cifbar
on computer,"""" and audi0 fape. . ~"--'CODdiUoDi.adprivt1(1972); ,
_pIoyIDa:lQ. C*'L cIenW, tOIl u.s. IS'
Copies may be obtained from the Office . D/OC•• ~ l.Im,i:dI--'I AII"n.111
of~ual Employment Opportunity by
,.ad an (Sib ar.)(br ndaI1y ~ UDiOD
c:alliilS (202) 663-:'1895 (voice) or (202)
=~
.:a~';c:aJ barm .
Housing.
'(FR Doc:. 93-23233 Filed 9-3G-93; 8:45 am)
=============
or
~
au'
663-4399 (TDD).
" .
FOR FUR1'HER ..FORMATION CONTACT:
Elizabeth M. Thornton, Deputy r --,
~
Counsel. or Dianna B. Johnston,
'
Assistant Lesal Counsal.'Office of l.epl
=
• -r.1IIenJed. Ull u.s. eM (1975): Wein
•• ~ Sfafer, 191 P. StIpp. 1050 (!.D. VL lIN)
(patUmed . . of~ ulll'llIId ..ui1u by co
wort. IDd IUptrriIor eplut plaiDtiJI rio!ated
pIUAUff'. npt ID lIOIl-dbalmiaatory tllrml and
caaditioDa of ~t).
'
�"\0,
t,'
,
.
Federal Register I VOl. 58; No. 189 I Friday. October 1. 1993 I PrOposed Rules
51267 .,
I
harassment based upon race,color. ' eeparate emphasia.Jn addition to the
natioDaI origin. age. or disability.•
1'8Ugion, sender.- age. or diAbiUty ~s' suIdelinea. more extensive suIdance on Recent ce.selaw on this issue
emphasi2el the importance of
epesiOUBlDd prohibited by title VB. the sexual harassment am be fOund in
ADEA. the ADA, end the Rehabilitation EEOC Policy Guidance No. N-915-050.· CODIIidering the perspective of the
Act.- FJnt. the Commission has
,
"Cur.nmt Issues of Sexual Harassment." victim 01 the baruament rather than
,March 19, 1990 (Sexual Haraament
' adoptins' notiOns of acceptable behavior
detarmined that It would be useful to
have'consIsteDt and consolidated
Policy Guidance).1he Commission',
that may prevail in a particular '
IUIdelines that set forth the standards
Sex Discrimin.ation Guidelines remain
. See. e,g., Ellison v. Brody.
lor detaiminfna whether conduCt in the in ef:fact.lDd there II no change in the ',924
872. 878-79, 55 EPD ,40.520
workplace Constitutas mega) harassment Commission', policy regardiJia sexual ,(9th Cir. 1991); Robinson v.Jacksonville
, under the variOus IDtidi.ac::rimination '
harassment
',
Shlpyr.urls. 160 F.supp.. 1486,55 EPD
ItatUtea:Second. ~use olall the 'Proposed Ue09.1(a) reiterates the, ,40,535 (M.D. FJa. 1991). As the Ellison
, 'I8C8Dt attention 'on'the ~ject of sexua! Commission', position that harassment' court observed. applyins existing
,
standa.rdl of acceptable behavior runs
harassment, the CommfssJon believes it on the basis of 18C8. color. religion, ,
sender. national aztgin,l8e. or disability the ri.sk of reinforclng the prevailing
. impcme.nt to ftt1terate IDd emphasize'
that haruament on lDy of the bases
CODStitutea diacrlm.iDation in the tanns. leVel ofdiacriaiination. "Harassers
, amnd by the Federal
' '
c:OnditiODllDd priv1leps of"
could ~tinue to harass merely because
, atJdiacriIn1nation statutes II unlaWful. employment IDa. a such. ,violates title a pe:rtf.cula: discriminatory practice was '
1hIrd. daing 80 at thJa time II
'
W, the ADM. the ADA. or the '
common·· ...' 924 F.2d at878.
; ~ ColDDlfssion explidtly rejects the
particularly useful because olthe recent RehabilitatJon Act, a l,.plicab1e. Th,
enactment olthe Americana with '
Supreme Court. in MeritDr Savi.nD Bank aotiOQ that iii order to prove a violation,
Disahillties Act. Fourth; these
v. Vinson. 477 U.s. 17 (1986). enCloned the pJaintiff must prove not only that a
sufdelines offer more detailed'
the'Commlsslon', posltJonthat title VII l88SODab1e p8rsoD would find the
fnformatJon about what II prohibited
affords employeee the rfsht to "ork in ,conduct sufficiently offensive to aeate
thin did the national origin guidelines.' ID envlronment free from
'.hostile work environment, but also
Finally, they put in suIdeline form the
discrlminatozy intimidation, inSUlt. ad' that hisIher psychological well-being .
I'ule that &eX harassment is not limited
ridicule. See also.Patte.nson v.14cL«m
was af!ec:tec[ Com~ Harris v. For1lift
to lwusment tIiat II 8exual in nature,
Credit Union, 491 U.s. 184. 180 (1989)
SjIBt.emB. --y. Supp. ----' 60 EPD
but also includes harassinent dUe to
(Court acknowledged that raCial " ' ' ,42.070 (M.D. Tenn. 1990) (pJaintiff
.1J8llder-based animus. .,' , , '
~ent wa ~onable uDder
must prove psychological injury) , aff'd
, Section 1606.8 of the National Origin a8ct1ou 703(a)(1) Of title VII). ' '
per cwiam. -----1.2d ----' 80 EPD '
GuIdelines will be incorporated into
' Proposed S1809.1(b) I8ts out the ' '42.071 (6th Clr. 1992). with Ellison v. '
and superSeded by these proJ)OS8d
- criteria for detanninIDg whether In.''
Brady. 924 F.2d 872, 878 n.l (9th Clr', '
'Guidelines on Hareaament T.tiia dOes
ection conatitutea unlaWful behavior.
'1,99,:1] (plaintiff need not demonstrate
aot represent a change in the,
1hese criteria are that the conduct: 0)
psydlologlcal effectsJ.1'he Supreme ,
Has the p~ or effect ()f c:raa:ting ID ,Cowt hal granted certiorari in Honis. '
Commission', position 'on hanissment;
:ratbar, it II ID effort to ccimhine and
intimidatins. hostile. or o&nsi". work, ~U.S. ----' 80 EDP ,42,072
c:larlfy. ' _
,',,' ,
environment; (ti) has the pUrpose or'
(1993). and the Commission hai joined
SeXual hUassment cCnitinues to be '
effect of unreasonably ~with
the, Department of Justlce in ID amicus
addresSed in separate guidelines'
,an individual', work~; or
. curiaeDrief opposing the Sixth ctrcuit
(iiilotharw1ae adyenily affects en
rule. Brief for the thiltsd states IDd the
because It I8iaes Jasues about hw:i1an
individual', emplOY.JDent opport.\!D1tJes. EEOC (A~ 1993) (No. 9Z-1168).
, Interaction t1iat are to aom8 ixtent
milque in
to other ' ,
, It also defineslDCi Jives examples of - AI notid above. the determination of
harUsment
dws.ID8YWsr:r$Dt
the types of V8IballDd phyalcal amduct, whether the compJained of conduct
,
'
In the workplace thet ~tute '
,'violatea mtJd1scrimination laws tuma
.n.... biru aI'~ . . . . . . . . . . ~t under title W,lDd ADEA.,OD Ita aeverityand pervasiveness.1hoee
IIiIed but ---r m
IIIbIN. s. HDll •• Gal
the ADA,lDd the Rehabilitati,on!sJ:L .' '. , factcn interact. Courts do not typically
~::;te:::.!.o:~=:=but- ::=t~ent l~ct~._l'
find.V1olationa based on Jaolatea or
.
. would DOt .... oc::cumd but Irr the _ of &he' . .
~, on ID
YHlUG:A ' .
IpOftld1c u.- of vezbal alurs or epithets; ,
, ...dIm II ",11o"'NnDwthh YDD: lIoi-won.
nee, colo;r.l8ligtcin.~. ,natioilll
. amnthe1ess, they recognize that ID
.
/Od:I:onPille~~P. Sapp.l488,UU "orlgID. ese. or disabiJIty." well a on
iao~ Distance of ~ conduct~
~':lt COId8IIl but
~1If~' COlordf~ilionty·lJ8.Df .' national .IUparv1sor-am corrode the entire
~
particularly whan pmpetrated by a
aoIMteclbJ I:DImuIIpbIIt WDIIIa " _ ,
" UIOI.e-' ap. or
. 0....... ...
• dllcrhnfpatlcm).
. : , . , ,:
.'
relatives. friends. or associates. . .. ' employinent relationsh.ip and aeate I
.
, AItbDueh daltc-nnm+n . .....,. NCGpINCI " PIopo8ed I 1609.1(c) I8tI forth the·. '. hoStUe envlronment For 8XlUDple. a
"ec1ImtNe. the ' ltandird for detanniJ'ting whether the " '_ _ _• JIo1ated 1188 of
a:r=
=-
. ,
-=':'!t'!:-1DIl
6at=-.
..........,........
~..:==:,::...a.c:::~
.~~::,C:~~~dantly ,~oryandpatentlJoffen$ve
_v - - w.v
':iedal epithets IDd alurs such as
conditions ofemployment ID~ create m, "'JaIaer"' and "epic" may be enoush to '
' intimidatins. hoItU8. or abWd". work
8st8liliih. 'riohdion. See•.., RIKIimr v
eB
GufcWt.... _phaf.aplIdlJJa.aJIlWamar
,eav1ronmsnt 1helfandardtawhethara
. '
.
IIut do DOt .... dill odI.r lJIIII, allIIruImeDl
reuonable parson in the tame or Ifm1lar We:ste.m-Southem Ufe Ins. Co•• 792 F. ,
IbouldDOt"~:,
'Clrcumstances wOUldfbid the
. .' ~628 (E.D. WII. 1992) (aupenUor'
'lDdeId, much of.n.t ~ laW derrnI
.,.
,"
use ollacia! comments such
hID prUldpl. ~m the _ aI-=iIIlDIl cbalJen.ied conduct int1mldating.
'. ' a'
•• IDd~ Black guy. are
1IeIlarIII ortsta ....... s.JIeritor&mnp
hostUe. GI'.abuaive.m ~.'
- - h • •~ .."; d
t be ,-_._-
~ •• VI.Iuoa,4"U.s.".""'(UIll8)·
'. whether that standard has been met,
"""'.'- . """6
0
ug~
(dIIQzuea ~ofllOllUle ~t
" caasidmation II to be slvaa to the
pelspictift ofindi'ridUals of the
'
~~
u.-u. .
'.
claimant', race. color.relJslon. sender. SGuII ~t Polley Gaid.mce.
propoIId pldeUMllIIDpl,. __ the appHa.ble
awe mpideUDe IDaa. a.IfaIl •. Gut ~
Co.,eu Ud loto. tOtt (eth Ctr, I.) CEBOC
==:c.u.IDIl:=r..::!-lIIIioaalarfalJi
#
_
..
-0-- .
..;=:=='::
�-t.
.'
.
I.,.. . . ..
51268
Federal Register I Vol. 58. No. 189
I
Friday. October 1. 1993 I Proposed Rules
agents" created a hostile work'
supervisors. regardless of whether the
explicit poUcyagainst harassment that
is clearly and regularly communicated.
,environment). See also Daniels v. Essel employer knew or should have known
Croup. Inc•• 937 F.2d 1264. 1274 It n. 4
of the conduct. if the harassing
to employees. explaining sanctions for
harassment, developing methods to
(7th Or. 1991) (court noted that even ' supervisory employee is acting in an
where harasser was a co-worker. one"agency capacity. "It notes that the,
sensitize all supervisory and non
egregiouslnddent. such as performing
Commission will examine t h e '
supervisory employees to issues of '
KKK ritual in workplace. would create
circumstances of the particular
harassment. and informing employees of
hostile environment).empl.oy.ment relationship and the job
their right to raise and how to raise the
Under title VII. the ADEA. the ADA.
functions performed by the harassing
issue of harassment under title VII. the
and the Rehabilitation Act. all
individual In determining whether the
ADEA. the ADA. and the Rehabilitation
employees should be afforded a working harassing individual is acting in an
Act. Establishing an effective complaint
environment free of discriminatory
·'agency alP!lcity."·
procedure by which employees can
intimidation. Thus. proposed
,If the employer fails to establish an
make their complaints known to
§ 1609.1(d) provides that employees
explicit policy against harassment. or
appropriate officials who are in a
fails to establish a reasonably accessible positiOll to act on complaints is an
hav,e standing to chanenge a hostile or
abusive work environment even if the
procedure by which victims of
important preventive measure. '
harassment is not targeted specifically at harassment can make their complaints
JtepJalor')'Flexibilit)' Act '
ithem. See. e.,.• Rogers v. EEOC. 454
known to appropriate officials. apparent
F.2d 234 (5th Or. J911) (discriminatory authority to act as the employer's agent
,The proposed guidelines. if
,work enviroiunent was created for .
Is established. In the absence or an
promi.llgated in final rorm. are not
'
Spanish~amed employee by
eXplicit policy againSt harassment and a expected to haY8 a slgnificant economic
segregation of employer~s patients on
complaint procedure. employees could
impact on smaU business entities.
the basis or national origin), cert~ .
'
reasonably believe that a harassing
within the meaning of the Regulatory
denied, 406 U.S. 957 (1912); Robinson v. supervisor', actions will be ignored.
Flexibility Act. 5U.s.c. 60t et seq.
Jat;bontdlle Shipyords, 160 F. Supp.
toTerated: or even condoned by the
List of'Subjectl iD Z9 0"1. Part 1609
1486 (M.D. Fla. 1991) (<<behavior that is employer. This Is the same llandard of
not directed at a particular Individual or liatiility for harassment by supervisors
Race. color;nligion. gender. national
group of individuals. but is
.
applied brthe QJmmiS:slon to cases of , origin. age. and disability
,
sexual harassment. See Sexual ' ' '
" discrimination.
"
disproportionately more offensive or
demeanin8 to ODe sex lcan be '
Harassment Policy GuIdance. .
For the Commission.
challenged)").".
Proposed § 1609.2(blprovides that an TGDJE.G. . . . . .
PropOsed § 1609.1(e) states that. in
employer Is responsible lor acts o{
,CliaillJtlJn.
detel'lDining whether the aUegedharassment in the workplace by an
, ,For the l"esSOiii Set forth in the .
conduct constitutes harassment. the
individual'. c:o-worbrs when the .
Preamble, the EEoc proposes to add 29
Commission wiD look at the record as
employer,lts
or supervisory •
DR part 1609, §§,1609.1 and 1609.2.8$
•
employees bew or should have
a whole and the totality of the
follows:
'
of the conduct."UDlesa the employer can
cb'cumstanoes,lncluding the nature of
the conduct and the context in which It. show that It took immediate 8nd. '
PART 1609-GUIDEUNES ON '
C)CCUJ'I. Whetlier particular conduct in
appropriate corrective action. This .
HARASSMENT BASED ON RACE,
the workplace Is harassing In na~ure and section J'AOO8Di7.8S that an employer is
COLOR; RELIGION. GENDER. '
rises ,to the level of creating a hostile or ,~Iy' Hable lor nOlHUpen.risory •
NA1'IOHAL ORIGIN. AGE, OR
abusive Work environmen_ depends
employee barassmentwhe,. it Will
DISABILITY
upon the mcts of each caSe and must be • aware or should have been awan of the
determlDed on .. case-by-case basis. '
~ conduct. ,.. ', ""
. .
.Sec..
, Proposed § 1609.2(a) applies agency
Propoied § 1609.2(c) provides that,
. 1609. t . Harassment
priDdples to the Issue of employer·
,because an employer Is Obligated to, . ' 1609.2 Employer Liability fOr Harassment.
liability for ba.rassmant by the
.
maintain a work environment free of
AadaorItr. '2 U.s.c. '2OOOe et seq.: 29
~ployer's asents and supervisory
harassment. Its liability may extend to
U.s.c. 621 eI.q.: 29 U.S.C.U101. et Iflq.; .
. .employees. The Supreme Court i n '
acts of lion-e~ployees. It states that an
29 U.s.c. 701, et.-q. '
'
Mentor SaVings Bank v. Vin.son•.417
' employer may be responsible for the
U.S. 57 (t 986), declined to Issue a
acts of.oOlHlDlployees with nspect to
(a) HarUsment on the basis of race.
'defin1tlve.naJe OD the Issu~ of employer environmental ha,rassment of employees color, NUBlon. gender,- national origin.2
Habilit}' lor claimS of enviroJUbental
_when the employer. Its asen14. or,
'.age. or cllsabllity c:oqstitutes
harassment. but nded ..that Co,'...........e
supervisory employees
or should
d _..... _ ! __d
i the
d' •
wanted courts to look to ._DCY-o"~
have boWn 01 the C:oQd.uct end failed'
iZiWUIW1&IUOD n
terms. con lhoDS.
-0end privileges 01 employment and. as
priadples lor pldance in this 1188."14. to tab Im~te end approp~te
, such, violates title W of the Civil Rights
at 72.
.,..
conectiw action. as _lb•• Important ..... f
ded
USc.
Subsection OJ of § 1609.2(a) states that factors to consider an the extent of the
~ 0 1964,. amen .42..
2000e et seq. (title W); the Age
'
the employer Is liable where it knew or empl~yer·. CQIltrol over the Don- :
Discrimination in Employment Act, as
should have known of the conduct end '. employees end the emplQyer'slegal
amended. 29 U.s.c. 62~.et seq. (ADEA); ..
failed to tab immediate and
.
~bWty for the coilduct of such
. '.
. ,.
,
,'~', , .
appropriate corrective action. A written DOIHIDplo)'ees.,., ,', " ".
.'. 'n.ecaldellDel~';'~~1 .
or verbal grievance or.complatnt. or a " ..Proposecl S1609.Z(d) sets Iorththe
tballl_..-uaJ 1II111.1ure. Sexual barusmenlls:
charge filed with the EECX:. provides " Commi~OIl·.posltion ~t ~"
cr:I'Nredbylbe~OD·.Gui<lell_on
actual noUce. Evidence that the'
.. '.measures to S:~= .harassment is the . -DbIcrlmlIIatioD IIec:IQIiIl of Sa. 29 aR 160U1 .
harassment is pervasive may establish
_best way to e
e harassment. It '. ,(199Z). . . ' ' .
.
:
L';;'
..,.:"t that'··
loW shoUld tab D . ,all«;a_tbe.1.an_COID~I... tbeee .
construcUye ~!lwledge.
"
: . : . . . . . . es., ~.emp _J er ' . . .. ,. a
"Guldeli_ siaperaede 11606.8 of tbeCommWion·. '
$Ubsection 111) states that the. ' "
,steps D~ t~ pnv~~ ~ent, ,Culdellnes 01\ DlaaimlnatlouBealUM or NalI_,1 :
employer is Hable for the ac:ts.ot its
.from occurring. tDcludiDg havmg an
.Orialn. zt C'R1606.1(1992).
.
I
eaents.
mown
.,808.'........m.m.
mew
' '.
�....
"
i
;
..
.
, Federal Register I Vol. 58. No. 189 I Friday. October 1. 1993 I Proposed Rules
51269
the Americans with Disabilities Act. 42 color. religion. gender. national origin.
gender. national orJsIn. age. or disability
U.S.c. 12101 et seq. (ADA); or the
age, or disability. It is not n8C8S8ll')' to .. where the employer or its agents or
. .wpervieory employees mew or should
RehabilltaUon Act of 1973. as amended. make an additional showi:Dg of.
.29 U.S.C. 701 el seq., ~cable. .
psychological harm:'
.
have mown of the conduct, and the
(b)C1) Harassment is
or physical
(d) An employer. employment agency. employer fa1led to.take immediate and
Joint apprenUcesh1p committee. or labor appropriate corrective action.
conduct that denigrates at shows
hostility or averaion toward an
0l88nJ Ution (h81'ell'lafter collectively
. .(c) An employer may also be
individUal because of hWher race,
'referred to as "employer") has an
. responsible for the acta of nonaflirmaUve duty to maintain a working
employees with respect to harassment of
color. rellglon. sender. national origin.
ase. or diAbility. or that ofhWher
environment he of harassment on any employees in the workplace related to
J81aUves. friends. or Usodates. and that: of these buaa.1 HaressiDs conduct may race. color. religion, 88Dder. naUonal
(i) Hal the purpose or efl'ect of
be challenpd even If the complaining
origin. age. or disability where the
employee(s) are not specifically .
. employer or its agents or IUpervisory .
creatlDc an Inf!midatlns. hostile. or
intended targets of the conduct..
emplOf8'J mew or should have mown
oll'enJiv. wort environment;
(11) Hal the purpose or effect of
Ce) In detarmJ.ufng whether the alleged . of the eonduct and fa1led to take
UDJ88IOD8bly int8rl'erins with an
conduct constitutes harassment. the
immediate and appropriate corrective
Commission w1ll100k at the record as
action... feasible. In reviewing these
individual', work perfonnance; or
(W) OtherwiSe adversely af:fecta an
• whole and at the totality of the
cases. the Commiaslon w1ll consider the
extent of the employer" control over
individual', employment opportunities. drcumstances, Including the nature of
(2) HarassJ.ns ccmduct Inelucia. but is the conduct and the cOntext In which it non-employees and any other legal
Dot lim1ted to, the followtns:occur.red. The determinaUon of the
responsibility that the employer may
(1) Epithets. slurs. negaUve
legality of a particular action will be
have had with respect to the conduct of
stereotyping. or threatening.
made from the !acts. on a case-by-case'. such non-employees on a case-by-case
intimidatlDc. or hostile acta, that relate . baaia.
.
. ' . basts. .
to J6ce. color. JeUsion. sender. national . 11108.2 Ii --..;... "II"" tor ~
(d) PnMmUon is the best tool for the
.o.rlgI.n, . . or dlsability~. and ... . .
9JIiUViW
..~ .
"Umfnation of harassment. An employer
(11) Written or IJI'8pbfc material thet .
. (a) An employer is liable for its
should tab all steps necessary to
-denigrates or shows hostil1ty or aversion conduct and that of its agents and
prevent harassmeIit from oc:cuning,
toward an individual or poup because '. IUpervisozy employees with respect ~
Ineluding hav:lqg an explidt polley
against h8rasam.ent thet is clearly and
olmce, color. rel1glon, pnder,liat1onal wOrkplace hara.Smient on the bui.s of
origin, age. or disability and that is .
race. color, rel1gion'.Bender. national
~Z.~ID1llwUcated to employees,
· placed on walls. bulletin boards, Or . orlgin. 9· or disabll1ty:
exp
sanctions for haruSInent.
elsewhere on the
pemises,
. (i) Wliere the employer mew or .
daVelopiq methods to I8D8itize all
.or drcu1ated In the
lace.'
should have mown of the conduct and IUpervisory and non-supervisory
. .
failed to tab immediata end
..'
employees em issues ofharasameat. and
(c) The standard for .:a..._~... ~......
........~
lp~rO==~nK:tJve action; or
whether verbal or physical ccmdUct·
'. Z.)
of whether the. .. . ,.' ~ empIoyees 0 f their ""..l.t to
uaurelat:lns to race, color, reJJslon. g e n d e r , . '
raise. en the procedures for raial.ng. the
. .ployer ~ew or should have moWD
issue of hare.s8ment under Utle W. the .
aational Orlgln.....or' d1s&bility is
.of the CODd~ where the harassing
ADEA,'the ADA. and the Rehabilitation
'Uffidaotl" .."...4 . , .asive to.
'-~~I_'_-1..
. wpervisory employee is acting In an .
Act. AD . -. 1
~d
' -:nate. IIUIIKWS or au va WUoUlo.
"esency capacity." To determine ' .
emp ~
e an
.
env:lranmeDt 11 whether a reasonable
wJiethar thi 1.....;;....c.... IndJvidual is .
effective comp t.
ure by which
'IIMII'Wftft . - the same
slmiIer·
'. . acting i:D an "agency capadty." the
--.0&&
empl~ can maki their comLp1a!nts
r-~ Ul
-,,-
drcumatancea would find the conduct· drcumstancea of theparticula:r
bOWD'to appropriate offidals who are
intlmida~·hoatile. or abusive. The
employment relationShip and the Job
fa. posltionto act oil them.
·~IOD.bte ~"standard 1ncll,ldes functions performed by the hs.rustng
.lPR Doc.ts-23869 FUed 9-30-93; 1:45 amI
'conaideration of the ~ve of
individual' shall be examined.
.
....... COOl ........
t aUthoriU act on the
pen0D8 of the ~ v:lctim'arace.
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.
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where uw employer falls to blatltute an """"'ftn tlllr.on.
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.I&paIc: IIdICIDII'- _ ... ____ 1 I l ) ' i'toemplbf;- orfailatoestab1isha . '.'. Benlt Secrecy Act R4IguIaUoni; . . .
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-which vit:tIms ofharalsmeDt can·make 8nd .,....,..1ttaIe of Fund. bi Financial
~. "pab-1IICb
their complaints blown to apprOpriate
1MtHutIon8; CorrectIon : '; . .
=.:,,~
:offidala who are in apoli.tiaD. toad on
.
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........................ 'ltenh..). . :c:o-warbrs, an employer II responsible . 8xtens1ap ol ~ant period. "
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em.tins Relatlna to Transmittal
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u.
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--:.aw
.
~
.
.
Department of'I'reuury is makinsa
�24998
Federal Register I Vol. 59" No~'92" Friday; May't~" 1994 I Proposed Rules
specific legislation. Under paragraph (c)(S}(i) more,otherlaxpayeri. pUrposely'
,',letters,receivedafterthe c~~ment
of this 'section, the assignment of B to, assist" :, , struct).1re8 its attempts to influence, ','
period officially closed. it has thus,' ,
, ' the legislative affairs department in analyzing ,legislation to achieve results that are:
dedoed to fonnally extend the c~mment
the bill and in drafting a position letter in -, unreasonable in lightofthe purposeS of;' 'period in order to give all parties an
oPPOSitiOll to 'the bill evidences a purpose, to. section 162(e) 'and section 60,33(e), the
opportunity'to, expre,ss their vie,ws. '
influence legislation. Based on these fat;;ts; ,
" ' , Commissioner can take su~ steps as ~ DATES: Comments must be received by
neither the activity of periodically,'
c;onfimiing the procec:iural status of the bill ' appropriate to achi~ve reasonable
,June 13. 1994.,
',
.. ,
nor the activity of preparing th,e routine, brief results consistent with the purposes of
ADDRESSES: Comments'should be "
sectioIi162(e). section 6033(e). and this addressed to the Office of the Executive
summary of the bill before March 31 '"
t"
"
"
, constitutes influencing legislation. With':,
secIon. " " , ' , ' , "'
Secretariat. EEOC. 10th Floor. 1801 L
respect to peri od icaII y con fiIrming the' ' , '
(f) Effective date. Tliis section is
: ' 'Stree't. NW., Washlngton, ,DC 20507~
procedural status of the bill on or after M~ch'
t
'd'
d
.....
3.1, it is presumed. under paragraph (C)(4) of ' e ective .or amounts pm or Incurre , :. Copies of comments submitted by the
this section, that E engaged in the activity
. on or~ft~r May l;r, 1994. 'TaXpayers,.'
'public will be available for review at the
must adopt a,reasonable hlterp~tation
Commission's library. room 6502. 1601
" solely to make or support the lobbying' .,'
cominunication because the activity',
of section 162(e)(1)(A) for amounts paid 'L Street. NW .• Washington. DC. between
commenced in the same taxable year as the ' or incurred Erior to 'this date,"
,. th h
f 9 30
d5
C·
.
p.,m, oples
Iobbymg communlca rIon. These (;acts.. , ' ',Par'.,,3,' In 1.'1'62-20., p'aragra''ph, (c)(5),' ofe ours 0 .of proposed rulemaking are,'
.
the notice : a.m, an
indicate that.after March 31, E determined
' 1S 'dde d t 0' . d as.o II ows: "
, a
rea ' t
"
.
available in the following alt,emative
. the procedural status of the bill forihe
purpose Of supporting ~he lobbying' .
§ q62-20 Expenditures attributable to,
fonnats: Large print, braille. electronie
lobbying, political campaigns, attempts to, file on computer disk, ,and audio tape.
communication by B and. accordingly, E
Influence leglslatl,on"etc., and cerialn
Copies may be obtained from the Office
cannot rebut the presumption ~s it relates to
,. advertising,'
,of Equal Employment Opportunity by
this activity. . "
"
:
, Example 8. TaxpayerZ prepares it report' *
*
* ,"*
'*.
'calling (202) 663-4695 (voice) or (202)'
that it is required by state law to submit to
(c) *:* '..
'"
'
'.
663-4399 (TOO).
"
'd
d ft
a state corporation'commission. Z sends a
( ) .
copy of the report to its delegate in the state
' 5 Expenses pal ,orlncurre ,a e,r , FOR FURTHER INFORMAllON CONTACT:
legislature along with the taxpayer's letter
,December 31.1993, in connection with
Elizabeth M. Thornton. Acting Legal
opposing a bill that would increase the state
influencing legislation other than'
.- Counsel, orDi~a B. Johnston,· ,
sales tax. Even though the leIter to the
certain local legisla,tion. The provisions -Assistant Legal Counsel, Office of Legal
of paragraphs (c)(l) through (c)(3) of this Counsel. EEOC 1601 L Street. NW., '
delegate is a lob9ying communication ,
section are superseded forexpel1Ses
'Washington. DC 20507; tele-phone- (202)
, (because it refers to, and reflects a view,on,
specific legislation), under paragraph. '
paid or. incurred after December 31.
' 663-4679 (voice) or (202) 663-7026,
(c)(5)(ii) of this section, the preparation ofthe 1993. in connection with influencing .'
(TOD)... ,
"
'
,report does not constitute influencing , ' " ,legislation (other, than certain local
, legislation.
,.,.,',
Ton)' E. qallegos, ,
'
Example 9. Taxpayer Y purChases an, . . legislation) to the extent inconsistent
Chainnan. Equal Employment Opportunity
annual subscription to a commercial. general ,'with section 162(e)(1)(A) (as limited by
Commission.
'
circulation newsletter that provides
, section 162(e)(2»)"and §§ 1.162-20T(d) - , IFR Doc. 94-11707 Filed 5-12-94; 8:45aml
legislative updates on proposedt~
and 1.162":'29. '
'.
legislation, Employees In Y's legislative
Margaret Milner RJcb&rdAn.
BlLUNG COOE ~I""
affairs t;lepartment read the newsletter in
order to keep abreast of legislative. ,
' Commissioner ofInternal Revenue. "
developments. EvenifY attempts to . '.
IFR Doc. 94-11613 Filed 5-10-94; 1l:23amj' DEj)ARTMENT OF THE INTERIOR
influence legislation that is identified and, ," 'SILUNO' CODE 4830..(j1..u,~:' '
, tracked in the newsletter, under paragraph
'Omceof Surface Mining Reclamation
(c)(5)(iii) of this section, the time spent by
,
' and, Enforcement
, employees of Y reading the newsletter does
EQUAL EMPL.OYMENT OPPORTUNITY,
'
not constifute Influencing legislation.
COMMISSION,
' . , · · 3 0 CFR Part 906
(d) Special imputation rule. If one '
" taxpayer, for the purpoSe of making or" 29 CFR Part 1!W9
,; .
Colorado Permanent Regulatory
supporting a lobbying commtiniC,ation,
_
'
, . ' Program "
"
uses the services or facilities of a second Guldelln,es on Harassment Based ?n
. AGENCY: Offic~ of Surface Mining
'taxpayer and does not compensate the'
Ra~e,Color, Religion, Gender•. Natlonal Reclamation and Enforcement (OSM).
Origin, Age, or Disability
Interior",
.
second taxpayer for the full cost of the
,AGENCY: Egul,ll Errtployment
. ACTION: Proposed rule; public comment
serVices or facilities: the purpose and'
'period and opportunity for public '
actions of the first taxpayer are imputed ,Opportunity C.ommission (EEOC).
to the second taxpayer. Thus, for , . ACTION: Proposed rule; extension of .
. heanng on proposed amendment.
example, ira trade aS~Qci~tion uses the
t' d
commen peno .
, SUM'MARY·. O'S,M I'S' anno'un',cl'ng the" '
services 0 f a member's emp Ioyee,a.t no
cost to the association, to conduct, "
SUMMARV:The period for,commenting
receipt' of a proposedameridment to the
research or similar activities to support- , on the proposed guidelines on
. Colorado pennanent regulatory program
harassment based on race, color, ',;
. (hereinafter. the- "Colorado program~') ,
the trade,association's lobbying,
communication. the trade association's ' , religion. national origin. age. or ",'
, under the Surface Mining Control and
purpose and actions are imputed to the
disability (56 FR 51266. October 1. 'RedamationAct of 1977 (SMCRA). The
member. As a result, the member is
1993) has been extended·to June 13.
", proposed amendmentconsists of
treated as influencing legislation with,
1994. After thecomr'nent period closed. revisions to the Colorado rules
, the Commission reCeived numerous
pertaining to bon~ing of smface coal.
respect to the employee's work in, '
support of the ~ade association's
comments and requests by individuals .: mining and reclamation operations and
lobbying communication., :~.,
',,' to submit comments_ Since the ' . , ,revegetation success criteria for areasto
(el Anti-avoidance.rule; If a taxpayer.. Co.mmission has informally been, . ,. ,be developed, for hidustrial,commercial.·'
alone ,or in ,coordination wi,tb one or
accep,!ing and .reviewing,comments and' or residential use.
a
===============
=====::;=:=========
>
�U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington•. D.C. 20507
FACT SHEET ON PROPOSED GUIDELINES ON HARASSMENT BASED ON' RACE,
COLOR, RELIGION, SEX, NATIONAL ·ORIGIN, AGE OR DISABILITY
ftere' 'has been. aome misunderstanding about the purpose of
the proposed Guidelines, which has generated considerable
constituent mail. To help you respond, we've provided the
Lollowing inforJllation.
. .
/ .'
1.
fte Guidelines were issued to help employers understand
existing law. Employers are constantly seeking guidance on these
issues. ~ere were already Guidelines on aexual harassment and
on national origin harassment, but none on race, color or
religious harassmerit or on the other bases covered by federal
employment discrimination'atatutes: age and disability. Because
of the recent emphasis on aexual harassment, it was important to
. clarify the fact that workplace harassment was prohibited on any
and all of the bases covered by the laws the Commission enforces.
~o omit religion from the Guidelines is likely to mislead
employers into believing that religious based harassment is
permissible.
2.
Since Title VXI was passed in 1964, it has been illegal to
subject employees to different and hostile working conditions
because of their race, color, religion, sex or national origin.
~his is ·because Title V7I prohibits employers from,
-discriminat[ingl against any individual with·respect to his
• • • terms, conditions, or privileges of employment."
The Guidelines simply explain to employers the existing
rules about harassment. They were derived from case law, the
Commission's pre-existing Guidelines on National Origin
Barassment, the Guidelines on Sexual Harassment and the Policy
Guidance on· Sexual Harassment. If clarifications are needed,
tbeywill be made before any Guidelines are issued.
3.
4.: Crlticai point: Not all offensive conduct violates the law.
Bara••ia, ooa4uct ~i.e. to tbe level of UBlavful di.criaiaatioD
ORly wbea a ~ea.op&ble per.oa would re,ar4 it a. hOltil. or
pu.iye.
s.
Because the lawia violated only when the complained of
conduct iS8Ufficiently-aevere and pervasive to be found hostile
or abusive, ~itle VXI would not be implicated when a supervisor
.erely tella aubordinates that he or ahe is Jewish, Huslim,
Christian,. ,etc. Reasonable people would not deem a statement of
one'. own .ffiliation, by itself, to amount to severe or
pervasive hostili~y to those who do not ahare the same belief.
Hor could it reasonably be'deemed to be hostile,to another's
re1igioua beliefs to wear a cross or a yarmulke. xt i. oae tbiDg"
to expre•• ope OWD ~elief'1 anotberto 4i.paraqe tbereliqioa or
belief. of other.. In a diverse workforce, this ia a critical
distinction and is the heart ~f non-discrimination law.
.
,
.
/
�6.
~he Commission has never taken the position that Title VII
prohibits the statement of one"s own beliefs in the workplace.
~o the contrary the Commission has repeatedly ruled that
employers.ust permit employees to wear yarmulkes .and other
religious garb to work unless doing otherwise would cause safety
problems or ~ther undue hardship. In addition, ~itleVII
explicitly permits religious organizations to employ individuals
of a partiCUlar religion to carry out the religious activities of
those entities~
.
7.
As the Guidelines explain, however, the law does protect
employees from having to endure .evere or pervasive concSuct that
l.bostil. or abusive.on the basis of religion. This is merely
an extension of ~itle VII's basic protection against
discrimination on the basis of religion.· Thus, for example, an
employee has redress ifs/he is subjected to repeated epithets or
insults hostile to his/ber religion, just as an African-American
employee has redress wben.subjected to repeated racial epithets
at work. This affords protection to employees .of all
persuasions. Thus, a Christian employee would have recourse
under Title VII if a "secular humanist n employer engaged in a
. pattern of ridiculing the employee's religious beliefs.
8.
Although the public is most familiar with sexual
harassment, the rule that it is unlawful discrimination to make
work conditions hostile or abusive because of race, color,
religion, national origin and sex, first arose in contexts other
than gender. 7n 1971, in a· case·called Rogers y. EEOC, 454 F.2d
234 (5th Cir. 1971), pert. denied, 406 U.S. 957 (1972), a court
beldthat segregating Hispanic patients can create.hostile and'
discriminatory work conditions for an Hispanic employee, in
violation of Title VII. See also Rodgers y. Western-Southern
Life Ins., 792 F.~upp. 628 (E.D. wisc. 1992) (statements that "you'
Black guys ar~ too f---ing dumb to be insurance agentsn created a
hostile working environment), aff'd, -- F.2d --, 63 FEP Cases 694
(7th Cir. 1993).
.
9.
'!'he portion.of~itle VII quoted above in! 2 makes no
distinction between the various bases covered; race, color,
religion, sex or national origin. Neither have the courts.
~itle VII has always prohibited employers from subjecting
. employees to workplace harassment because of the employee's
religion. For example, in weiss y. United States, 595 F. Supp.
1050, 1056 (E.D. Va. 1984) the court said: "when an employee is
repeatedly subjected to demeaning and offensive religious slurs
. before his fellows by a-co-worker and by his supervisor, such
activity necessarily has the effect of a~tering the conditions of
bis employment within the meaning of Title VII."
10. ~e principle that employees have a right to "work in an
environment free from discriminatory intimidation, ridicule and
insult,- was recognized by the Supreme Court in 1986 in Heritor
Savings Bank Y, Vinson, 477 U.S. 57, 65 (1986). Though Heritor
va. a sexual baras.ment case, the Court made clear that it was
�· • !
epplyingprinciples applicable to other classes covered by Title
VII. The Court specifically accepted'the principle that creation
of a bostile environment based on discriminatory racial,
religious, national origin, or sexual harassment constitutes a
, violation of Title VII. ~ ~ at 66. Just this year, in
Harris Y, Forklift Systems, a sexual harassment case, the Supreme
Court ,indicated that all bases covered by Title VII are treated
the same. :~ Harris Y, Forklift SySll Inc., No. 92-1168 slip
Opt at " (Nov. 9, 1993); ~ at 2' (Ginsburg, J., concurring)
("Title VII declares discriminatory practices based on race,
gender, religion, or national origin equally unlawful").
,"
�•
Draft Questions and Answers on the Guidelines on Harassment Based
pn Race. Color, Religion, Gender .. National Origin, Age or
Disability
'Q.
Could it be considered religious. harassment if an
individual placed a Bible on his/her desk or wore a cross, a
turban, a yarmulke" a star of David or any kind of religious
talisman to: work?
'1.
A.
'The Guidelines provide that harassment is conduct that a
reasonable individual would view as severe or pervasive enough to
create a hostile or abusive environment based on, among other
things, religion.
It is inconceivable that a reasonable person
would view as creating. a hostile or abusive environment· an
individual' a statement that he or she belongs to a particular
church, placement of a religious tome like .the Bible on a bookshelf
or desk, or another's decision to wear a religious symbol to work,
'.Indeed, according to cases involving "reasonable accommodation, II
employers are required to accommodate their.employees' expressed
religious need to wear religious garb, provided that doing so would
not create an undue hardship_
2.
Q.
':Is it permissible unQ.er the Guidelines for an employer to
. conduct 'Bible study or prayer meetings in the workplace, even
though all of the individuals in the workplace do not belong to the,
same .religion?
A.
l\nemp1oyer would have, the right to conduct such
meetings. provided that individuals who do not wish to .attend or
take part are not forced to and are not penalized in any way by
their decision. not to attend.
~,.c....s..a.,
EEOC v. Townley
Engineering & Mfg .. Co., 8?9 F.2d 610 (9t~ Cir. 1988).
3.
Q.
Do the Proposed Guidelines affect an employer'S freedom
to .share .his/her .faith with an employee?
A.
T.be Proposed Guidelines are not intended to create any
obligations on employers. They were derived from case law, the
Commission's pre-existing Guidelines on National Origin Harassment,
the Guidelines on Sexual Harassment and the' ,Policy Guidance on
Sexual Barassment and they merely explain to employers the existing
rules about harassment. Accordingly, the Proposed Guidelines do
not alter an elqp1oyer's existing right to exPress religion in the
war~lace.
. '
. DeW
Q.
'If a .aupervisQ%' who constantly preaches the benefits of
his/her religion repeatedly asks subordinates' to accompany him/her
to religious services and the supervisor is constantly rebuffed,
. could .a charge of harassment ultimately be asserted?
-I..
A.
~is i.s a fact dependent question. .' As the Proposed
Guidelines note, the totality of the circumstances will be
considered .in making such a determination. . , But,' if employees make
"
..,,"'"--.- ..
...........
�clear that such invitations are unwelcome and the supervisor
persists in pressing his/her religion on his/her subordinates,
existing principles of harassment law suggests that a cause of
action £or harassment could be asserted.
s.
Q.
Could one incident, such as placing a mug with an
offensive symbol such as a swastika on one's desk, constitute
harassment ?,
A~
'It is extremely unusual for· one . instance of. hostile
conduct to violate the law, but when the conduct is especially
hostile it may.do so.
Some symbols are so patently offensive or
&busive that any reasonable individuaJ would conclude that they
polluted the workplace environment. ~ ¥Udovich v. P.W.Stone,
839 F. Supp •. 382 (E.D. Va. 1993) ('supervisor's expression of anti-·
Jewish hostility such as keeping a coffee mug with a swastika on
his desk prominently displayed ·and in public view may by itself
violate Title V I I ) . ·
. ,
.
6.
Q.
Mayan individual discuss his/her religious beliefs in
the office?
A.
Discussions of religious beliefs with those who welcome
such conversations would not violate the law. General statements
of belief that do not denigrate or show hostility to those of other
beliefs would generally not violate the law, unless the speaker
consistently persisted in lecturing or discussing religion after
the listener.has asked not to.be subjected to such·discussions.
�103D CONGRESS
'J1.Res.
, 2D SESSION'
IN THE HOUSE OF REPRESENTATIVES
Mr. MCKEON (for himself) submitted the following resolution; which
was referred to the Committee on '
----------------~----
,
,
RESOLUTION
Expressing the sense of the House of Representatives regarding the'
issuance under Title VII of the civil Rights Act, of 1964 of
administrative guidelines applicable ,to" religious harassment in
employment;.
Whereas the liberties protected by our Constitution include the
religious liberty clauses o~ the first amendment;
"
'
Whereas citizens'of the united States profess the,beliefs of ,almost
every conceivable religion;
"
Whereas Congress has historically protected religious exPression
:even from governmental action,not intended to be hostile to
religion;
Whereas 'the Supreme Court of the United states has written "the free
exercise of religion means, first and foremost, the right to
believe and prof,ess whatever religious doctrine one desires";
Whereas th~supremecourt has finally settled that under our
constitution the public expression of ideas may not be prohibited
merely because the content of the ideas is offensive;
"Whereas the Equal Employment opportunity Commission has written
proposed guidelines to Title VII of the Civil Rights Act of 1964,
published in the Fede,ral Register on Octo,ber 1, 1993, which expand
the definition of "haras,sment" beyond established legal standards
set forth by the Supreme court which may thus result in the
infringement of religious liberties;
,
,
,
,
'
Whereas the Commission has not offered sufficient evidence that
such guidelines are necessary to deal with religious harassment or
to remedy some gap or" weakness ir, existing law: No~, therefore, be'
it Resolved.
.
.~.
,
That it is the sense of the House of Representatives that 'for
purposes of issuing under Tite VII of,the Civil Rights Act of 1964
final guidelines in connection with the Proposed ,Guidelines relating
to unlawful harassment in, employment published by the Equal
Employment Opportunity Commission on October 1, 1993(58 Fed. Reg.
51266) the, commissicm should exclude harassment based on religion.
�(
.'
HOWARD P."BUCK" McKEON LETrERHEAO -- OS/23/94 {818) 885-1032
*******
E E 0 C
*******
Dear Colleague: In February of this year I gathered 45 co-signors
for a letter to the Chairman of the Equal Employment Opportunity
commission requesting that "religion" be categorically removed from
the Commission's proposed guidelines to Title VII of the·1964 Civil
Rights Act. Since ,that time, a number of Members' offices have
contacted my office regarding this issue.
Calls and letters from business owners, labor leaders, religious
leaders and alarmed constituents continue to flow into'
Congressional offices expressing concern over the EEOC's Proposed
Guidelines. In response to what I have been Hearing in my office,
I obtained two legal opinions of what the potential implications of
the enactment of the Proposed Guidelines would be for employers and
their employees. Both opinions, one from.a labor perspective and
the other from a ConstItutional perspective, support the claims
that the end result of the inclusion of religion in the Guidelines
'would be a stifling of religious expression; a violation of the
First Amendment.
As a result, I will be introducing a Sense of the House Resolution
that the EEOC should exclude harassment based on religion from the
Guidelines. Because the Guidelines are so subjectively written, for
an employer to follow them to the letter without fear of legal
action, he/she must essentially create a "religion free workplace."
To permit these guidelines to be implemented with the category of
religion included is to invite litigation against employers who
allow their employees to exercise their First Amndment rights.
Religion has special Constitutional protection and coverage under
the Religious Freedom Restoration Act which passed last year with
strong bi-partsan support. This freedom should not be compromised
by the actions of the EEOC, however well intended.
.
.
I will be introducing this legislation on Thursday, May 26 and
would be delighted to have you join me as an original co-sponsor.
Should you have any questions or wish to cosponsor Sense of the
House Resolution, please contact my Legislative Assistant, Heather
Lee Ingram, at X51956.
Kind Regards,
HOWARD P. "BUCK" MCKEON
*****************************....*******************************
�I
CONGRESSMAN DICK AP.MEY
W.u"ttr,J10.. af_iU,
2eT... GISTAlC f, ru:.t.s
30 ~ C,..."'O'" "evil 0111'1 el"'.~/I~'"
W"''''"'''0llo. DC 20$ 1'~.3:1e
11011
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.IOII;T !CONOM.C COMMmu
IIEPU8UC,,", CONFEIU!NCE
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May 24, 1994
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me: 20515-4326
Support Religious Freedom in the Workplace
It is becoming increasingly dear that the proposed EEOC rules on
religiousharassment are a solution in search of a problem. In case you missed it.
I commend to youuttenticn last Sunday's op-cd in the Washington Times.
~~fullYi
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.
Dick Armey
Member 01 Congress
IG:~h::~~~e
PACT. BH SUNDAY. MAY 21. IP9h
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!---------------------------------------------------------------
�HOWARD P. "BUCK" McKEON
WASHINGTON OFFICE
25TH DISTRICT. CAi.IFORHIA
.
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307 CANNON HOB
WASHINGTON, DC 20515
(202) 225-1956
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PUBLIC WORKS AND
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DISTRICT OFFICES
SANTA CLARITA VALLEY OFFICE
£DUCATION AND LABOR
PRESIDENT
REPUBLICAN FRESHMAN MEMBERS
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R£PUBUCAN LEADER'S TASK FORCE
ON HEALTH CARE
23929 W.VAL£NCIA BLVD., Sum 410
SANTA CLARITA, CA 91355
(805) 254-2111
the tttlittd9~tatts
ANTELOPE VALLEY OFFICE
tlo~ ~fFlitQlT£~mt~q,~
1008 WEST AVENUE M-4, SUITE D
PALMDALE, CA 93551
(805) 948-7833
May 20, 1994
17134 DEVONSHIRE AVENUE. SUIT£ 201
NORTHRIDGE, CA 91325
(818)885-1032
.Uashm~lH .Da: 205lt0525
BIPARTISAN TASK FORCE
ON NATURAJ. DISASTERS
SAN
FERN~NDO
Mr. Tony Gallegos
Act~ng
o
-n
Chairman
o
EEOC
1801 L Street, NW
Washington,. DC 20507
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Dear Mr.;.Gallegos:
VALLEY OFFICE
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Thank you for re-opening theconunent period froltC!May.13 U
through June 13.. I· was pleased to see ·this occur and btf1tiev{E:it
will allow the public to make the Conunission more acutely aware of
its keen interestin·the Proposed Guidelines to Title VII of the
19.64 Civil Rights Act.
I am concerned.. however, about the status. of the conunents
received in between the first conunent period of last year and the
second COImlent period. . It is my understanding that ove:r; 4 ,000
conunents have .been received in the interim. . Thes·e conunents are
representative of the concern the general public has over these
guidelines and should be made a part of the official conunent file.·
I .would like to see them includ~d in the official comment file.
I
look forward to hearing of your decision regarding this
matter.
HOWARD p. nBUCKn McKEON
Member of Congress
RPM/hli
RECEIVED
MAY 24 \994
.
EEOC
OIYloe of Communications
Washington. DC
;,
THIS STATION£Il'f PRINTED 0I0i PAPER MADE 01'
RECVCLED FIBERS
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HOWELL HEFLIN
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ALABAMA
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WASHINGTON, DC 20510-0101
May 2, 1994
, "
Mr. Tony E. Gallegos
Acting Chairman
The Equal Employment Opportunity Commission
10th Floor
1801 L Street, NW
Washington, D.C., 20507
Dear Mr. Gallegos:
I am writing to express my concern regarding the proposed
Guidelines on Harassment Based on Race, Color ,Relig,ion, Gender,
National Origin, Age, or Disability proposed in the Federal Register
Vol. 58, No. 189. I believe that these rules could, in an unjustified
manner, restrict individuals' religious freedom. '
The language which the EEOC relies upon to set the', standard for
religious harassment in the workplace was derived from a sexual
harassment case before the Supreme Court, Meritor Savings Bank v.
vinson, 477 U.S. 57 (1986). In this Gase, the Supreme Court was
discussing sexual harassment in that specific context. ,While there
has been a great deal of attention focused recently.on the issue of
sexual harassment, the EEOC'S at, temp t to define religious harassment
by transposing the standards for sexual harassment on1y adds to any
confusion, that may exist.
The Commission's Guidelines stat~ in the introductory paragraph
that religious harassment and sexual harassment tests are to be viewed'
in the same context "the right to work in an environment free from
discriminatory intimidation"insult, and ridicule." Theiecould b~
problems with the application of this to religion. Freedom of
religion is specifically protected by the first amendment. As such,
any actions that might infringe on this Constitutional right should be
given ,consideration and review. Before any sucn standard is
finalized, it must be made clear what constitutes "intimidation" in a
religious context.
The lack of any clear definitions for religious harassment will
cause problems at the implementation level for ,the many employers who
would be forced to a'pply these confusing standards to every day
situations. I am afraid, and there is mounting, ,empirical evidence to
support this fear, that many employers in an effort to minimize their
liability will move to limit or prohibit .religious expressions in the
workplace. For instance:'
,
-Would a foreman be able to wear a cross around the neck or on a
lapel pin?
�I
"
••
"
"
-Could a supervisor wear a religious symbol such as a Christian
fish 'on a tie pin?
-Are religious holidays allowed7
-Can a business take more holidays for one faith than another?
-Could a supervisor wear a St. Christopher Medal?
-Could a foreman sell·
tick~ts
to a church pancake breakfast?
-Could an employee wear a Yarmulke?
-Could a business employ a chaplain?
-Could employees at a business have a weekly prayer breakfast in
which supervisors participated with some, but not all, employees?
-Could an officer of the company have a Bible on his office desk?
. -C~uld athletes still kneel and make the sign of th~ cross in
celebration of some accomplishment?
These examples are just some of the real Ii
questions that need to
be addressed. Most. employers will have difficulty with these standards
because of the vague and subjective nature of the Commission's
"reasonable person" test. The "reasonable person" test is a gene'rally
accepted legal standard; however, tl}e Commission's provision that
"cons·ideration is to be given to the perspective of individuals of the
claimant's ... religion" Section 1609.1·((:::) ,makes this test a confusing'
and possibly onerous burden for employers that could ultimately lead to
the suppression of religious freedom. Employers may be forced to ,
anticipate the reaction of employees of every religious faith to .any
form of religious expression that could possibly occur.
'.
I am also concerned· that these Guidelines fail,to take into account
the Religlous Freedom Restoration, Act (RFRA), P.L. 103-141 (November
16, 1993). UnderRFRA a' law cannot "substantially burden a person's
exercise of religion" unless the government can show"",that the law is
the least restrictive means of furthering a compeliing government.
interest. I urge.the Commission to reconsio.er these Guidelines in
light of ,RFRA.
.
'\.
The proposed· Guidelines, as'currentlyworded and applied to .
religious discrimination, may ultimately encourage'a workplace in which
religious expression and freedom aresuppresse9" which is not the
intent of Title VII of the, Civil Rights Act or the Constitution.
Therefore, I urge the Commission to delete the category of rel'igion
from the proposed Guidelines or clarify the issues pertaining to
religion.
'
'
.
Since ely,yours,
.~
,~
n
ewell He
HH/gb
�tCongrt!5!5· of tbt 1Unittb
~tatt!5
aafbington. at: 20515
Mr. Tony E. Gallegos
Acting Chairman
The Equa~ Employment Opportunity Commission
10th Floor·
1801 L Street, NW
Washington, DC 20507
February l5, 1994
Dear Mr. Gallegos:
We.are writing to express our .concems regarding the proposed Guidelines on
Harassment Based on Race, Color, Religion, Gender, National Origin, Ase or
Disability ("Guidelines") which apply the definition and interpretation of the
"hostile environment"type of sexual harassment to the religious context,
combining it with all the other categories of discrimination prohibited by the
Title vn of the Civil Rights Act and the Age Discrimination Act.
In the introductory discUssion, the Equal Employment Opportunity
. Commission (EEOC)· states that "the Supreme Court has endorsed the
Commissions' position that Title vn affords employees the right to work in
an environment free from discriminatory· intimidation, insult, and ridicule.
However, in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the case to
which the EEOC refers, the Supreme Court was specifically discussing the
issue of sexual harassment in that context. The limits of "intimidation" have
not been well-defined in the context of religiOUS belief. The extent to which
an employer may make his or her religious beliefs or affiliation known to
employees of differing beliefs .inthe.face of a prohibition on discriminatory
"intimidation" is unclear under the Guidelines; certainly such an act should
not constitute "harassment."
II
In Section 1609.1(b)(1), the Guidelines define harassment as "verbal or
physical conduct that derrigrates or shows hostility or aversion toward an
. individual because of his/her... religion ... and ~ ..has the purpose or effect of
creating an intimidating, hostile, or offensive work environment; has the
purpose or effect of unre~sonably interfering with an individual's work
performance; or otherwise adversely affects an individual's employment
opportunities." This standard is quite subjective and leaves the employer
responsible for unintentional as well· as intentional activity.
The effect on the employee constitutes harassment when a "reasonable
person· in the same or similar circumstances would find the conduct
intiinidating, hostile, or abusive." Guidelines Section 1609.1 (c). The
�"
'If
...
_ •
•
intimidating, hostile, or abusive." Guidelines Section 1609.1 (c). The
.tlreasonableperson" test is generally considered an objective legal standard,
but the EEOC makes clear that it is not meant to be objective: "the reasonable
person standard includes consideration of the perspective of persons of the
alleged victim's religion." Section 1609.1 (c). In the introduction, the EEOC
further explains that "[rlecent case law on this issue emphasizes the
importance of considering the perspective of the victim of harassmerit rather
than adopting n9tions of acceptable behavior that may prevail in a particular
workplace." These provisions seemingly place employers of every religious
faith in the untenable pOSition of having to anticipate the reaction of each
employee, taking into account each employee's indiv~dual religious beliefs, to
every manifestation of religious expression in the workplace.
Freedom of religion is specifically protected by the first amendment and
therefore has Constitutional significance that cannot beignored. We are not
convinced that it is wise to simply transpose the Guidelines developed for
sexual harassment to harassment on the basis of religion as the nature and
the magnitude of the problems are very different. While the pervasiveness of
sexual harassme~t and the lack of recourse for many of its victims has been
well-demonstrated, there iSlJery little evidence that r~ligious harassment is a
major problem in the modern workplace.
Moreover, we are concerned that, in promulgating the Guidelines, the EEOC
.failed to consider the significance of the recently enacted Religious Freedom '
Restoration Act (RFRA), P.L. 103-141 (November 16, 1993). RFRA prohibits a
law from .tlsubstantially burden[ing] a person's exercise of religion" unless the
government can demonstrate that the law is the least restrictive means of
furthering a compelling government interest. We fear that the broad
definitions of the Guidelines may suppress non-harassing religious
expression in the workplace to an extent that may not be justified under the
'strict scrutiny contemplated-by RPRA.
'
The proposed Guidelines, as applied to religious discrimination, go far
beyond existing law and may' result in a workplace in which religiOUS
expression and religious freedom are suppressed, which is not the intention
of either Title vn or, the U$. Constitution.' Since the guidelines cover several
categories of harassment in ac;idition harassment based on religion, it would
be awkward and cumbersome to reword the proposed Guidelines' to address
these concerns.
Therefore,'we urge The Commission to delete the category of religion from
the proposed Guidelfues.
.
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28TH DISTIUCT. CAI.":ORNIA
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BUDGET
JUDICIARY
omQ
HOWARD L. BERMAN
April 7, 1994
.Mr. Tony~B. Gallegos
Acting Chairman
Equal Employment Opportunity commission
1801 L street N.W.
wa.h~ngton, DC
20507
Dear
Ifr.
,f"!
Chairman:
.,
I am writing with some embarrassment to disassociate myself
from a letter dated February 15 and addressed to you concerning
the Commission'. Proposed ConaolidatedGuidelines on Harassment·
Based on Race, Color, Religion, Gender, National Origin, Age or
Disability, sa Fed. Reg- 51,266 (oct. '1, 1993).
.
I indeed signed the letter initiated by my colleaque Rep.
McKeon, but in all candor I must say that I did so by mistake •
.
I realized'my error even before I received the response
dated MarCh 22 from Philip B. Calk1ns, but hi. explanation
reinforces .y determination ~o disassociate myself fro~ the joint
congressional lettar.
.
For 'the record, I urge you n2t to delete reliqion from the
Guidelines.! certainly do D21 question Whether religious
harassment occur. in the workplace; I ltnow for a fact that it
does.
,
fl'he Proposed Guidelines have been criticized as compelling a
religion-free workplace, but· in my view, that 1s not the case.
Ths mere expression of religiouB belief is protecbed, while
conduct w~lch goes beyond that to disparage or denigrate the
~eliqionor beliefs of others is not.
It is entirely appropriate
for the agency responsible for enforcing T~tl. VII's prohibition
o~ dIscrimination on the b.sia of religion to make clear to
employers that the latter oonduct i. impermi•• ible.
Tbe foregoing, and not the February 15, 1994 letter, ia an
accurate reflection' of my view.oonoerning the Proposed
Guidelines. I request ~hat this latter be .adea part of the
record in the Commission's rul.~in9.
,~
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U.S.EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington. D.C. 20507
Karch 22, 1994
~e Honorable Howard P. (Buck) McKeon
U.S. Bouse of Representatives
washi.mJt.on, DC .2 0515 .
Dear Congressman JlcXeon:
~i.'i. in response to your letter dated February 15, 1994,
expressing concern about the inclusion of religion in our
Proposed Consolidated Guidelines on Harassment Based on Race,
Color, Religion, Gender, National Origin, Age or Disability, 58
Fed. Reg. 51,266 (Oct. 1, 1993). We appreciate your comments and
vill 'find them useful in determining the scope of needed
clarifications to the proposed Consolidated Guidelines.
.
,
7nltially, we note that the Commission is an enforcement
. agency; our purpose is to enforce the law created by Congress to
effectuate congressional intent. Therefore, ininv.stigating and
processing charges, and in developing policy and formulating
Guidelin.s, the Commission applies the law as written. As the
preamble to the Proposed Consolidated Guidelines notes, the
Guidelines are intended merely to explain this existing law -
they are a restatement of rules enunciated by court cases,
Commission decisions and guidelines. Interpretive Guidelines
. issued under Title VII cr~ate no new obligations.
As you are aware, in enacting Title VII of the Civil Rights
Act of 1164, as amended, 42 U.S.C. S 2000e at a.g., Congress
prohibited discrimination,on,the basis of race, color, religion,.
gender or national origin. The Supreme Court has repeatedly
~oted that Title VII ·on its face treats each of the enumerated
categories exactly the same.- Price waterhouse y. Hgpkins, 490
U.S. 228, 242 ~.I (1989) (Brennan, J., plurality); .... Harri, y.
Eprklift sys.,Inc., No. 92-1168 slip op. at 4 (Nov. 3, 1993).
'litl. nI's ban against discrimination include.a
prohibition on discriminatory -terms, conditions, or privileges
of employment.- For over twenty years the federal courts and the
Commi.sion have held that harassment based on a statutorily
protected classification is a discriminatory term .orcondition of
employment and thus is prohibited by Title VII. Harassment based
�•
i'.
•
.•
'!'be Honorable Howard P. (Buck) JlcI(eon
Page !'Wo
on religion'violateB the law 1n the aame manner as harass••nt
lHuIed on other protect.d ba.... 1U,.L1L., weiss y. united
stat's, S95 P. Supp. 1050, 1056 (B.D.Va. 1984) (-when an employ••
iarepeatedly .abjected to demeaning and offensive religious
.Jura before biB fellows by a co-worker and by his supervisor,
such activity necessarily has the effect of-altering the
conditions of biB employment within the meaning of Title VII-).
Like har••••ant on oth.r bas.s, religious hara.sm.nt will not be
found unle.. the challenged conduct is hostile or denigrating on
the basis of religion and 18 8ufficiently s.v.r. and p.rvasiv. to
alter the conditions of employment.
~s, it 18 not religious harassment for a 8upervi8or or a
co-worker .erely to state his/her religious affiliation. Hor i8
it religious har••sment when an individual wears a yarmulke, a
turban or a eros. to work. 1'h. commission r.cogniz.s that
expr.ssion of one's own beli.fs is far differ.nt than,disparaging
the religion or beliefs of-oth.rs. Use of the r.asonable person
teat in the Guidelines is intended to acco'&l.nt for this. For
example, a reasonable person would not find placement of a Bibl.
or the Boran on' hi./h.r .upervisor's desk to b. hostile and
intiaidating. Bevertheless, because your comments and others
have indicated that the Guidelin.s may be misinterpreted, the
~ammis8iOD will consider how to alleviate such misunderstanding.
Wa note your concern that the commission cited Mtritor
y. Vinspn, 477 U.S. 57 (1986)" a case involving
seXual hara.ament, for the proposition that -Title VII affords
employee. the right to work in an environment free from
d18criainatory intimidation, insult, ,and ridicul.,. - While
Keritpr did involve a cause of action based on sexual harassment,
the Court indicated that it was .pplying principles applicable to
other ba••a covered ))y 1'itle VII. 1'he Court sp.cifically
endorsed the principle that cr.ation of a hostile environment
.baaed Oft discriminatory racial, religious, national origin, or
.exual har....ent constitutes a violation of 1'itl. VII. _... ~
at 66. %t .hould be noted that, more rec.ntly, the Court in
Barri, Y. Forklift IY'1f In;, i No. 92-1168 slip opt at 4 , (Hov. 9,
1.93), reiter.ted the position that harassment on the basi. of
race, color, religion, gender or national origin constitute. a
violation of tt'itle VII. ' .au .Il.I,Q ~ at 2 (Ginsburg, J.,
concurrlng)(·~itle VII declares discriminatory practices ba•• d on
race, gender, religion, or national ,origin equally unlawful-).
Sayings Bank,
�·
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fte Honorable Boward P. (Buck) KcKeon
.age S'br••
%n addition, you suggest that application of the "reasonable
in the aame or aimilar circumstances test" will require
emplQ7era to conaider the religion of every aingle person in the
workplace betore these employers' may 'express religious views in
any way_ Again, barassment law would not evan be implicated by
expr...ion that doaanot denigrate or show hostility toward those
vith other beliefs. , On the other hand, to the extent that the
conduct at iasu~ consists of epithets that denigrate others, it
..... likely that reasonable people of all faith. would find such
conduct offensive. In any case, the Commission's intent in using
the -r.asonabl. person in the same or similar circumstances test"
va.'not to .ak. new law. Thus, in issuing any final Guideline.,
the Commi••ion vill consider how to address the concerns you
raised.
~.on
letter also questiona whether religious harassment is a
probl. . in the modern workplace. Although the topic
of s.xual hara.sment bas recently received much attention, other
£oras ot invidious harasament, including religious harassmant,
unfortunately, do exist. Indeed, one reason that the Guidelines
were promulgat.d va. to alleviate public confusion about whether,
hara....nt on other protected bases was illegal. Religious,
hara•••ant doe. occur and does have concrete effect. on the
victims. ...., L.!Lt.., 'l'urner y. Barr, 811 F. Supp. 1', 2 (D.D.C.
~113) (religious harasament found when plaintiff'. co-workers and
superviaor. . .de negative references about Jews to plaintiff, who
. .a Jewiab. and made jok.. about the Holocaust).
,
Your
~icular
With respect to the Religious Freedom Restoration Act, we
nota that at the ti.e the Notice of Proposed Rulemaking was
issu.d, the •• ligious Freedom Restoration Act had not yet been
enacted. Accordingly, a. we review the Guidelines we will
'
con.ider vbat i.pact, if any, the Religious Freedom Restoration
.Act "i11 have on them.
We nota that the COmmission has nevertaken'the position
that an individual is not .ntitled to exercise his/her religious
~reedom in the workplace.
In fact, the commission has brought
suit to require -.ployers to accommodate an individual's deaire
to wear yanaulkes and turbans in the workplace or to be excused
, .from Sunday "ark in order to worship, unless the, accommodation
�. . ..
,
...
Honorable Boward P. (Buck) HcXeon
Page Four
~e
wou1dcau.. undue hardship. ~itle VII does not, however, permit
one individUal's practice otreligion to intertere with another
individual'. right to a workplace free ot hostility. ~
Sberbert y. yemar, 374 u.s. at 409 (Court implia. that its
'analysis 1n~ree exerci.e case,might have been ditterent it
appellant's right to ~ree exerci.e -abridge[d] any other person's
.religious 1iberties-).
:
Your letter suggests that religion be delated trom the
Guidelines. 2be Commission will con.idar your suggestion. Wa
nota, however, that the purpose ot the Guidelines .is to intorm
employers and employeas ot their respective responsibilities and,
rights. Even it the Guidelines do not mention religion,
employers are, as a matterot law, obliged to ..intain a
workplace ~ree of religious harassment. For example, if an
individual is taunted, teased and denigrated because s/he has'
.tatad a~ various times that s/he attends church on a regular
,baais, or has protessed devotion to a Supreme Being, a hostile
environment 011 the basis ot religion may have been created under
existing law. 1J.'o. the extant that, as your comment. suggest,
clari~ication 1s necessary to achieve the goal ot accurately
intoraing the public, moditications will be, made. However, the
Commission will have to consider whether deleting religion from
the Guideline. may mislead an employer to believe that s/he has
no obligation to protect employe.s trom such religious ~sed
.-.oatility.
Again, we appreciate your comments, they will be quite
helpful in our deliberations. We hope this response is helptul
to you.
~13.~
Philip B. Calkins
.
Acting Director ot Communications
and Legislative Affairs
�.
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202 456 7028;# 2
EEOC'"
6-14-.94 ;10: 49AM
SENT:BY:
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Stand.",!! orm
'Request for OMB ~eview
(Rev, SeP!i,nl." ! '1l.\.:I)
Important
Read instru!;li~'fI~ before compl~t;ng form. l)('I r)('\!U!o<f:' the .. :tmE/Sf 8:i
both an Executive Order 12291 review and approval under
the Paperwork Redu<:tiOrl Act.
An!;wer all QU~5tions in Part I. If this ({!quest i~ tor rc:view under C.O.
12291, C(Jmp'elf! P,Hl II allo sign the regulatory r.er1.ilication. If thi$
requl!:s\ I!. for aoproval unclE!r thePaperwnrk RerllJ(",tioli Act and 5 O't~
1320. ~,ki~. Pat! II, cOlTlplp.te P"rt III and $ign tlie paperworl!. certific;;ilnn,
Sun(l three copic:s of this form. the mattlri;;1 to be rr.viewed, .11'1(1 for
p.ij~le(W{"k-three copies of the supporting statement,
to rcqur.!>t
Oftir.c of Information and Regulatory Affair~
Office of Management and Budget
Atter,tion: Docket Library, Room 320J
Wasl'llngton•. DC 20503
to:
PART I.-Complete This Part for All ~eque5ts.
Equal Employment Op[x>rtunity Canmision
3~ N~nl.~ ot"pnr'inn
Who C~;'-beSt 'ans;e~l'u,i~ f'eg"iil'ling trlts reCiJ'~$t
. ,.,----- ~ ~ , .
Dianna B. Johnston. Assistant Legal Counsel
-.
~
...
",_._--'' - ' .. :...,----
- - '~
,
~
Guidelines on Harassment Based on Race~'·Co.lQr.. Religion. Gender, National origin, Age. or
Disabili.ty
.s. Legai auttlo,ity
TOrintorrI1Jtio;j'cOllectiol'l or rule·(c·,ii'!1f1itp.c1 Stare.s c06c, Pu/,/ti law. o;:-ttaCucivt! Older)
. 42 . ' ___._.
2000e-12
'
USC
,,'or _ _ __
..._,-----". ----
_ _ ..w •• _ _
w
---_
•
.....
6. Affp.ctIJd puDI;, (checlt 1'111 tll.lf :lpply)
KJ
6.0
7 0
·5
3U
1 1-1 Indivlrftllll~ nf n(\lI$~holds
2 K] StlJte or local R~\I"rn~e~t;
4
f~.. rr1"
tJ HVsinessl!s or other f(lHlrOfit
,----_ •.._-
Federal agencies or employee!';
Non·profit institutions
Small b'.lSinC!'5stls or organizations
PART It-Complete This Part Only If the Request is for OMB Review Under hecutlve Order 12291'
--_._---'--
7. Regullliion IdentIfier Nunll'.Jer (HIN)
".... ,<if" None assignt'ri ~ .
8, Type of s"ubm~ssilil'l '(,he,1I Oiie if) lIRf;" cafego--"...:y)-:-----·-'
Stage 01 de"~top'"(!"t
CllilSlflcarion
1 0
2
KI
- - - - - - - -..
((J Propo('cd Uf dioll
2 OPltnding
0 fioaIOtj'nterimfinal,,,,ilhllfll'HproPCis&1
3 0 El"lh\!rgenr:y
3' 0 Fil'lal or irlterjf~ tin'll, wit!'lQ(J! f:',ior propcl$l'
4 0 Statutory or Judicial deadline
-----'--'--;...,.--
', ...
Nonmajot
2
10~ Coes fhj~ re8lllatlofl COrlt,,;n
1320?
<
.... ·-·-----~.....",Ty,..et.-e-o-t,..fe-v·ieii".,qI.lI!lSled
1 El. Standard
1
MOijOf
and 5 efR
.... -- _.
........--.,.--_.-
- ,,------".,----------,
rf!porting or rec:ordkep.pi''1t! ,equirements that 'equifl:: OMI:! Clllpru".. ' untie' tho'Paperwork ReCluclu:1U Act
. .'.
. . , . . . .... .
.
11. If a n\!ljar lUll:, is tlll/,e a rf;!gulatory Impact analysiS ilttaCtle(l~ .'
__
lf~.9J~didOMBwaivet~.~.~ysis?
•.•
'
'.:
.•
,
--
.;....
.
.
.~ No
. f] Yes
----.-------.--
Notarra)"o.r. rul.
".e.
. . 1
L.J
_".:.':__:'_ _~__
. . 3
[J YI!!,.,_4D No
YP-s
2
0
No
. ~ " .,.
111 Subl1'litting this request for OMS review. the authorized regulatory COrllCJel and the orogram.offidal certify thatlhe requirement$ cf £.0. 12291 and any applicabl'.l
Dolicy dirl!ctive!l'. have been complied with.
. . '
.
CertlflcatlGri tM RegLi'.tory Submissions'
$iKnirture of programoiiiCial
Elizabeth M. Thom~on, Acting Legal Counsel
Sig".,iu;~ 'Of author,'cd ..(:i~liltoi)'contllr:T
'Eti1.abeth M. TI'1oroton~Actjng Legal Counsel
12, (OMB lin! "lIly)
f"L"'OUr. ""lIlicns (1)~OI"I~
NSN i'~4U 00,634·'103'1
83·108
.
Standard fo,m,83 (1(';-" 9'1'3)
P(cscriood by OMfI
5CFR 1120 ....tlf,O, 12291
�EEOC'"
6-14-94 '; 10 :50AM :
. SENT:,BY:
.,.,
202 456 7028:# 3
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
. Washington, D.C. 20507
SQptember 9, 1993
MEMORANDUM
TO: '
FROM:
dr'.
T~orneo .:",'
Tony E. Gallegos
. Chairman
'~l
'J..zIt1 izabetH:,·
ricting Legal Counsel
'
SUBJECT: Notice of Proposed Rulemaking Guidelines on,Harassment
Based on Race, Color, Religion, Gender, National Origin,
Age, or Disability
The subject document is attached for your signature.
It was
approved by the Commission on July 14, 1993, has been. transmitted
pursuant to Executive order 12067 and subsequently approved by OMB.
In
order for it to be published in the Federal Register, we must
.
forward three (3) signed original copies.
' .
If.you have any questions, please call me at 663-4638.'
�SENT .. BY:
-<1k
•
_
6-.14-94 ;1 0: 50J\J\l
EEOC'"
202 456 7028:# ,4
.'
:Inrozmation Itatam.8Ilt. Oil BBOC Clui4alllle. &Il4 Opinion.
one of the tools the Equal Employment opportunity Commission (EEOC)
employs in carrying Qut its enforcement responsibilities for the
various civilriqhts statutes under its jurisdiction is the
issuance of guidelines, which are published in the Federal Register
and codified in the Code of Federal Regulations. While Commission
guidelines do not have the force and effect of law or regulations,
they serve several significant purposes.,
.
'The Co_iss ion. has tradj.tionally used guidelines as a means of
stating for the public's in·formation its' position on a variety of
employment discrimination issues. Guidelines, in effect, serve to
put affected parties on notice of howth_ Commission interprets the
law and how it will apply it in cases brought before it. ThUS, by
means.of 9uidelines,both entities covered by and subject to the
federa:l laws and individuals whose rights these laws protect may
make informed decisions about contemplated employment actions and
avoid,unnecessary and costly involvement with the . legal systein.
However 11 should. a legal action arise, courts are not bound by
Commission guidelines.
Courts, in their d.iscretion, may 'give'·
commission guidelines the deference the court feels is d.eserved,
ranging from great weight. to no~e.
.
Although the Commission is not statutorily or otherwise required to
publish proposed guidelines 'for notice and cOJlUl\ent, . the Commission
has always sought public cOmment on its guidelines.. It has done so
in the deeply held belief, that guidelines, benefit from. and are
strengthened by the insights, perspectives, and. practical
,suggestions offered by thepUblic....
The two-way .exchange of information. created by the Commission's
publication of proposed guidelines f.or· notice and public comment·
followed by issuance of· the final (and often revised) guidelines
for public information makes.' guidelines a unique enforcement
vehicle..
No other C01'lUllission policy document provides the same
le~el of public access, in terms of either input or availability.
Other issuances -- for example, "EEOC Compliance Manual sections or
enforcement. guidances -- although available to the public,. are·
primarily for internalsta,tfuse in processing discrimination
charges..
'
In contrast to quidelines,'Yhichhave' universal application,
. written interpretations or'opinions by the Commission" (known as
opinion letters) have extremely narroW applica.bility.
opinion
letters have legal significance only to the persons or entities to
whom .they are issued.
As provided by' statute, opinion letters
provide that specific person a defense against liability for
actions taken in'good faith, in conformity with, and iIi reliance on
the Commission's written opinion. Opinion letters, however, are
issued only in rare and exceptional', circumstances.
Further,
bfi!CausB. 'of their. fact-specific nature, they have limited
�~,...
, €-14":94 .; I 0: 5lAM
SENT. BY:
I\.
EEOC""
202 456 7028;# 5
precedential'value even tho:Dqh they are published and available to
'.
the public.
Unl ike opinion letters, advisory or informal opinions. have' no> leqal'
siqnificance and do not insulate the: recipient from liability under
the law •. Informal· opinions are not issued,by the Commission itself
but, rathe:r" by a Commission official' or representative.
Such
opinions are provided, in the course, 'of routine correspondence,
,offer' qeneral information, and have no precedentialvalue.
Informal opinion~ ar~ ~priy'a,~e; in nature and l.illitedto the
addressee,,"
Because of the use of notice and comment on the proposed harassment
guidelines, commission staff r~cognizes, based on those comments, ,
that there is considerable confusion concerning tQe intent and the
scope of the guidelines.' As a consequence, Commission staff·· h,as
become increasingly aware that any tinal guidelines that are issued
need clarification. For this reason, it ,has been sU9gested that
Questions and Answers be ,appended' to'the guidelines.
Such an
approach. was followed· in issuing the Commission's Preqnancy,
Discrimination Guidelines in 1980, and It greatly clarified the
gUideI ines them.sel ve~ ..
"
EEOC Office of Legal Counsel
6/3/94
�'1\'"
",
"
51,266
:
.
,
Federal R.egiSter I Vol. 58, No. lb91 Friday, October 1, 1993 I. Proposed Rules
"Heating Degree Days", the pbi'ase"and
Cooling Degree Days".
Dated: Augu,st i7. 1993.
JOAph ShuldiDer,
A.sSistanr Sect:etmy/01' Public'and Indian
Housing.
(FR Doc. 93-23233 FUeci 9-3o-,.g3; 8:45 amI
CowiseL EEOC, 1801 L street, NW., '
Washington, DC 20507; telepbone(202)
663-4679 (voice) or (202) 663-7026
(1DD).
::,
"
This
propOSed rule is not a major rule for
'p~eof Executive Order 12291..
The Commission has long recogmzed
, 'that harassment on the basis of race.
color. religion, sex. or national origin,
violates section 703 of title vn of the
EQUAL EMPLOYMENT OPPORTUNITY Civil Rights Act of 1964, as amended. 42
COMMISSION
'
U.S.c. 2000e et seq. (title Vll). The
'
,Commission has also recognized .that, ,
29 eFR Part 1609
harassment bat!ed on age is prohibited
GuldeUnes on Harassment Baaed on
,by the Age Discrimination i n ,
'
Race. Color, Religion. Gender. NatIonal Employment Act of 1967, as amended.
Origin, Age, or DlMbUlty
29 U.S;c. 621-(Jt 6!fKl. (ADEA). The
, '".,', __;' '" 'Cominission ~ InteIpreted the " ,
AG£NCY:Equal Employment,
' ".: ,Rehabilitation Act of 1973. as amended.
, Opportunity Commission (EEOC).
' ·29 U.S.c. 101 et seq.; end the ,Americans
ACT1ON: Notice of proposed rulemaking. with Disabilities Act of 1990,42 U.S.C.
"
12101 et seq. (ADA). as prohibiting
8U11MARY: The Equal Employment
, harassment based on,8 person's
disability.,ReII!at:ding the ADA. see
Opportunity Com.mJ.ss1on is issuing'
Guidelines covering harassment ,that is, S163Q.12 ofdit! Commission's
based upon race, color, religion. gender regulations on Equal Employment
(excluding harassment that is sexual In ' 2Pporturli,t)ifor Individuals With
natu.re, which is covered by the
Disabilities, 56 FR 35,137 (1991)
, Commission', Guidelines on,
" , (codified· at 29 CFR 1630.12) (1992).
,
DiBcrfmination Because of Sex}, national
For m9re than twentyyeers. the,
origin. age, or di,sabiUty. The
"
" federalcourta have held that harassment
vioJatea the statutory prohibition against
Commission baa determined that it
disatmlnatfon In the terms end
would be useful to have c::onsoUdated
RUldelinestbat set forth the stenda.rds ,'CoQditians of emplO)'Dient.1 The '
for determf.nJng wbethfir conduct In the Commission has held end continues to
wOrkplace constitutesUlegal harassment hold that an employer has a duty to
, under the vario1:l8 antidiscrimination' malntabi .~wo~ environment free of
StatuteS. Thus. these Guidelines
'harassment based'on race, color, , ' .
consolidete, clarify end eXplicate the .
sex. national origin. age, 'or
ility, and that the duty requires '
Commission'; position on. number of
'issUes relating to harassment. The
positive acti9n where neCessary to
Guidelines ,upersede the CommIssion's 8liminate suCh practices or remedy their
, Guidelines on Discrimination Betause
efffK;ts. The Coininission has previously
of National Origin.
Issued guidelines on sex7basad
DA1ES:Comments must be received by
harassment that is ~ In nature.
' . EEOC Gui~elines on Discrimination
November 30. 1993.
'
ADDRESSES: Comments should be '
Because of Sex. 29 CFR 1604.~ ~ (1992),
addressed to the Office ofthe Executive' and guidelines on national ongm
~
Secretariat. EEOC. 10th Floor '1801 L
" ~ent. EEOC Guidelines on
,
Street. NW., Washington. DC 20507. '
DIscrimination Because of National
,
Co les ofconimeDts aubDntted by the' ,.oriRln, 29 c;FR 1606.8 (1992).
'
op , '
I
th
Y'or severiJ reasons, the Commission .
public will ~ .vaJlabe
review at e haS determined that thera 11 a need for '
Commission. library, room 6502. 1801 , 'new guidelines that emphasize that
L Street. NW•• Washington. IX:. between,
'
..
, the hours of 9:30 a.m. and 5p.iD. Copies. See. -..r.. Boatri Y. £toe. UU.2d 134 (5th Cir.
ofthis notice of proposed rulemaJdD8 ' 1m, (~ of _p1oyeta pe.tl.1I1t1 au the
ere available In the following alternative ..... of uatKmll origID could create diacrimiriatory
, It,
ts T ...... print L_n1 electrontc' workeo.YiroiImeDtbSPIUIkh_ed'employ..
,Ianna : ..... f>e
, "'-lLUIe,
aOiIIc:tfDs IMtama. coudiUOIU,md privileges of her
file on computar disk. end audio tape. ' 'wiaploym.«lo. cett. d«Ued. 408 u.s. 957 (1972); ,
Copies may be obtained from the Office BBOCy. ~ £Dn8d!oreme:n'r Au'n. 511
of Equal Employment Opportunity by
F.Jcl In (5th Cir.)(by ndally aegregatiDs union
calling (202) 663-:4895 (voice) or (202)
~:~:;caI Jwm
663-4399 ODD).
"
).. em. danled. 423 u.s. t94 (1915): Waisf
FOR FURTHER INFORMATION CONTACT: ,
Y. UnIted SttllIw. 8115 F. Supp. 1050 (E.D. Va. laM'
"""--beth M.',' I.lom t on, Deputy Leg'al
"'"
(pCtemed
r.&aI1
-ur IIlduse of rellgIoua dunilld IaUIIU by C\)o
supervisor ~t pltintiff violated
Counsel. or Dianna B. Jobriston. " , plalnt1fl'. riiht to I1On-dilcrimlnatory tflllllt and
Assistant Legal Counsel; Office of Legal ClQI:\djoons of employmenlJ.
8UPPLEMEN"i'ARY' INFORMATION:
=======::;::=====
I
for'
c;=-
�','
..
Federal Register I Vol. 58; No. 189 I Friday, October 1, 1993 I Proposed Rules
-
51261
I
harassment based upon race, color,
, separate emphasis. In additi,on to the
national origin, age, or disability .•
religion, gender,1 age,or disability is ' ' guidelines, more extensive guidance on 'Recent caselaw ori this issue
egregious and prohibited by title
the sexual harassment can be found in
emphasizes the inlportance'of
ADEA, the ADA, and the Rehabilitation EEOC Policy Guidance No. N-91~50,considerlng the perspective of the
Act.1 First. the Commission has
"'Current Issues of Sexual Harassment," victim of the harassment rather than
March 19. 1990 (Sexual Harassment
' adopting' notions of acceptable behavior
determined that it would be useful to
have'consistent and consolidated
Policy Guidance). The Commission's
that may prevail in a particular '
Sex Discrimination Guidelines remaiil
workplace. See, e.g., Elliso,n v. Brady,
guidelines that set forth the standards
lor d8teimining whether conduct in the " in effect and there is no change in the
924 F.2d 872, 878-79, 55 EPD , 40,520
(9th Cir. 1991); Robinson v. Jacksonville
workplace constitutes illegal harassment Commission's policy regarding sexual
under the various antidisaimination
harassment.,'
,'Shipyards. 760 F.Supp .. 1486,55 EPD
stahites:Second, ~use of all the
Proposed §.1609.1(a) reiterates the'
,40,535 (M.D. Fla. 1991). As the Ellison
, recent attention 'on the subject of sexual Commission's position that harassment ,court observed, applying existing
"
harassment, tht'l Commission believes it on the basis ofrace, color, religion,
'standard! of acceptable behavior runs
gender, national origin, age, or disability the risk of reinforcing the prevailing
, important to reiterate-and emphasize
that harassment on any of the bases
constitutes discrimination in the terms, level ofdiscriniination. "Harassers
,.'
cOnditions and privi1eg6s of '.
'
, could continue to harass merely because
covered by the Federal
. antidiscrimination statutes is unlaWful. employment and, as such, violates title a particular discriminatory practice was
Third, doing so at this time is
_
vn, the ADEA. tha ADA. or the
common·· •." 924 F.2d at 878.
'
particularly useful because of the recent Rehabilitation Act. as applicable. The . ; The Commission explicitly rejects the
enactment of the Americans with .
Supreme Court. inMeritor Savings Bank - notioQ that iIi order to prove a violation,
Disabilities Act. Fourth;, these
v. Vinson, 477 U.S. S7 (1986), endorsed, the plaintiff must prove not only that a
guidelines offer more detailed
the 'Commission', position that title vn reasonable person would find the
information about what is prohibited
affords employees the right to work in
,'conduct sufficiently offensive to create
th8n did the national origin guidelines. an environment free frOm '
a hostile work enVironment, but also
Finally, they put in guideline form the
~scrlminatory intimidation~ inBWt. and -that hislher psychological well-being .
i'ule that sex harassment is not limited
,ridicule. See also Patterson v.,McLean
was affected. Compare Hams v. Forllift
to harassment that is s8xual in nature,
Credit Union, 491 U.S. 164, 180 (1989)
Systems, ----y. Supp. - - - - o J 60 EPD
, but also includes harassment dileto'
(Court acknowledged that raclal
'42,070 (M.D. Tenn. 1990) (plaintiff ,
.'
,'
harassment-was actionable under
must prove ,psychological injury) , affd
- gender-based animus. '.
-Section 1606.8 of the National Origin section 703(a)(1) Of title VUJ.
per curiam, ------..1.2d ----,60 EPD
Guidelines will be incorporated into
Proposed § 1609.1 (b) sets out the
, 42 071 (6th Cir. 1992), with Ellison v.
aiteria for determining whether an·
Btodt, 924 F.2d 872, 878 n.l (9th Cir.
arid superseded by these proposed
Guidelines on Harassment. This does
action constitutes unlaWful behavior. '
'1991_~ (plaintiff need n~ demonstrate
'
These aiteriaare that the conduct: (1)
psychological effects). The Supreme .
Dot represent a change in the
Commission', position 'on har8.ssment;
Has the purpose or effect of aeatins an
Court has granted certiorari in Hams,
rather, it is an effort to combine and
intimidating, hostile, or offensive work .' _'_US. ----.:..... 60 EDP '42.072
environment; (ll) has thepUrpase or < ' (1993), lIDd the Commission haS Joined
clarlfy " - ,
smiat halassment cOritinties be
effect of UDr8a.ROJ) ably int8rfer1ngwith'
the Department of Justice in an amicus
addresSed in tieparate guidelines
' an individual', work performance: or
"curiaeDrief opposing the Sixth Circuit
because It raiies issue8 about hurilan
(iiilotherwise adversely affects an
rule. Brief for the United States and the
, interaction·,that are to some extent
individual', employment op~ties., EEOC (A~ 1993) (No. 92-1168).
wiique in comparison to other' ,
It also defines ana givesaxamples of
, ,.. noted above, the determination of
harassment
thus, ~Ywarrant
the types of verbal and physical conduct ,whether the complained of conduct
in the workplace thatconit;ltute ,..
.- "violates antidiscrimination laws tums
a'l1ler. .rwfolma afllarull.nt.tbatuwaenderharasJInent under title VII. and ADEA. .. OD its severityand pervasiveness. Those
baed bat _ _ _ ID DatuJe. See HtJll Y. eu.
the ADA, and the Rehabilitation Act. '. factors interact. Courts do not typically
Calutnlc:£tCIII Co.. 142 P.2d 1010. 1014 (8th Or.
Actionable harassoient JDcludes .
,
find violations based on isolated or
=~
~:: ~.==.bllt harassment based on an bidividual',
. aporadic use o{verbal slurs or epithets; ,
YldIm IIICtIoDahIe aDd.·tlt1e VlD): IlDbWon v.
race, colQJ', religion. R8D~.nation8l,· nevarthel. they recognize that an
'I
fochotrvIlle ~~ P. Sapp. 1_ lau
origin, age, or dlsabifity. as well as on ' isola~ bistance of iuCh conduct\
~~
..!.':~t ccmteDl bat"'=J~"lIld the race. colord~~ilion. pn~, national .particularly when perpetrated by a
-r
~, age, or
, ty pf one,· ."
IUperviso1'-can corrode the entire
. ~v:~~'ma"plDlt WOID8II ~ - .' .
relatives, friends, or assoCiates. ". . •..'. emp~ent relationship and aeate a
- Although tbe Cmnmf"'cm Ilia Ihiaya recosnlwed ,. Proposed S 1609.1(c) sets forth the . ',' hoStile environment. For example, a
tbUJ.U:daMIued .......... II acdcmabIe. tile '
1tand8rd for cIetermbrlns wh.rther the ," ·-1U'j)8i'visor'1 isolated use of "
~';'==!;'::..~~~
alleged Iuu'ass1Iig con~ ~dentlYinflan;mAtoiy and patently o~ve '
propoaed pldeliDee IImplyltat8 tile eppliClble
severe or pervasive to tar e
. ·iadal epith~ and slurs such as .
, . NIelD ptdellDe farm. See Hall Y. eu. Comtludion conditions of employment an~ create an. ''Digger'' and "spic" may be enough to "
Co.. 142 P.2cIl010. 1014 (ath Or. 1888) (EEOC
.
m=:=t.' ~~~dard~ve'L~~~ , . 8it8D1i&h a Violation. ~"e.g., Rogers v.
Guidallna _pbes!w _ N....... ~,'blbarior
en
U.le
' Wuaw.ac 8 ' . uth Ufi
but do aot IlaIe that othIIr afhlruament
reasonahie naNnn in tbe same or sfinilar Westem-So, em' e Ins. Co., 792 F.
IhouldDOtbeCOlllldered).·"r:,~ :
r-~
.'
'
. ~upp.;628 (E.n. Wis. 1992) (supervisor's
allideed, Iiludi of -uIl harumieirt laW darfv.
~ces would find the.
'..
lnfr8quent use of racial comments such
from prtDc:Ipl. deftJoped iD the _ of Ndal and
che .-en8ed condud intimidating,
,
as "nigger" and "you Black guys are
utlaaal or\sIDhlruamtIDt. See JIfrritor SavingI
hostile.- or abusive. In detaimining..
"too " ••in8 dumb to be insurance
~ Y. VlIuon, 477 u.s. 87, es-«I (1888)
whether that standard has :been met.
. .
"
, (cIIICuaa. ~plea ~hoatile envjnmm..t
--'d ti ~- t be M 'to th
~t deYeIoped III ndII csd Datlaaal origlD
UA1aI era on UI 0
&"van
e
".11aJt ltamdard II coi1sIIteat with tile ItIIldard
harumuBit cu. csd .pplJed to .xuAl
_' p9rspectl-ve of individuals of the
' -WUed to euual baruiment. u MIt oat ill the
b.arucD..o.
claimant', race, color, religion, gender,
SmtuaI Harulment Policy Guidance.
vn.
j
to
ana.
_
--.7
.
_.7
.
.\AU
..
�..
'"
,
51268 '
Federal Register I Vol. 58. No. 189/ Friday. October 1. 1993 I Proposed Rules
explicit policy against harassment that
agents" created a hostile work,
supervisors. regardless of whether the
is clearly and regularly communicated.
environment). See also Daniels v. Esse" employer knew or should have known
to employees. explaining sanctions for
Group. Inc .• 937 F.2d 1264. 1274 &: n. 4
ofthe conduct. if the harassing
harassment, developing methods to
(7th Cir. 1991) (court noted that even.
supervisory employee is acting in an
sensitize all suPervisory and non- ,
where harasser was a co-worker. one
"agency capacity:' It notes that the
supervisory employees to issues of '
egregious incident. such as perfonning. Commission will examine the
harassment. and Infonning employees of
circumstances of the particular
KKK ritual in workplace. would create
their right to raise and how to raise the
hostile environment).
.
employment relationship and the job
Under title VII. the ADEA. the ADA.
functions perfonned by the harassing
issue of harassment under title VII. the
and the Rehabilitation Act. all
ADEA. the ADA. and the Rehabilitation
individual in detennining whether the
. employees should be afforded aworking harassing individual isecting in an
Act. Establishing an effective complaint
environment free of discriminatory
"agency capacity."
.
procedure by which employees can
intimidation. Thus. proposed
If the employer fails to establish an
make their complaints known to
§ 1609.1(d) provides that employees.
explicit policy against harassment. or
appropriate officials who are in II
bave standing to challenge a hostile or . fails to establish a reasonably accessible position to act on complaints is an
abusive work environment even if the
.
procedure by which victims of
important preventive measure.'
harassment is not targeted specifically at harassment tan. make their complaints'
them. See, e.g.• Rogers v. EEOC. 454
known to appropriate o.fficlals. apparent Regulatoryflexibility Act
.1Oe proposed guidelines, if
F.2d 234 (5th Cir. ,971) (discriminatory authority to act as the employer's agent
promulgated hi final fonn. are not
is established. In the absence of an
work. environment was created for .
Spanish-su~med employee by
.
explicit policy against harassment and a expected to have a significant economic
segregation of employer~s patients on,
complaint procedure. employees could . impact on small business entities.
the basis of national origin). rert:: ~,
reasonably believe that a harassing
. within the meaning of the Regulatory
Flexibility Act. 5U.S.C. 601 et seq.
denied. 406 U.S. 957 (1972): Robinson v. supervisor's actions will be ignored.
/at;lcsonWlleShipyords. 160 F. Supp.
tolerated. or even condoned by the
List of Subjects in Z9 Q1t Part 1609
1486 (M.D. Fla. 1991) ("behavior that is employer. This is the same staridard of
Race. color;religion. gender. national
not directed at a particular Individual or liability for harassment by supervisors
origin. age. and disability
group of individuals. but is
applied by the COmmiSsion to cases of
, discriminaUon.
.
.
disproportionately more offensive or .
sexual harassment. See Sexual· .
For the Commission.
demeaning to one sex (can be· ' .
Harassment Policy Guidance. .
Proposed §1609.2(b) provides that an Toay E. Galleps.
challenged)").',
PropOsed § 1609.1(e) states that. in
employer is responsible for acts o(
.Chairman.
determining whether the alleged·
ha.rassmentln the workplace by an
.
. ,'For the'~ riet forth in the .
conduct constitutes harassment. the
.·lndividual~. co-worbrs where the .
Preamble. the EEoc proposes to add 29
Commission will look at the. record as
employer. its agents. or supervisory
a whole and the totality of the '
employees knew or should have blown CF'R part 1609. §§.1609.1 and 1609.2. as
follows:
.
of the conduct.'Wllesa the employer can
circumstances. Including the nature of
the conduct and the context In which it. show that it took immediate and
'.' PART 1~UIDEUNES ON
ocxurs. Whether particular conduct in
appropriate corrective action. This. .
HARASSMENT BASED ON RACE,
. t he workpl~ Is hara.$sing in na~ure and sedlon recognizes~t an employer is
COLOR, RELIGION. GENDER,
rises.t() the level of creating a hostile (,r
~nly,liable for.non...uperviso!y ., '.
NATIONAL ORIGIN. AGE, OR
abusive work environmen~ depends
. employee ~t whe~ It was
. DlSABIUTY
upon th~ facts of each caSe and m.ust be ,aware or should have been aware of the
determined on ~ case-by-ase basis.. .
harassing conduct..· ';- . ....
Sec.
1609.1 . Harassment..
. Proposed § 1609.2(a) applies agency .
PropoSed § 1609.2(c) provides that.
1609.2 . Employei' Liability fOr Harassment.
principles to the Issue of employer
. because an employer Is Obligated to' .
Authority: 42 U.s.c. '2OOOe et seq.: 29
. .
maintain a work environment free of
liability for harassment by the
. U.s.c. 621 et "4.:' 29 U.S.c. 12101, et seq.: '
~ployer'. agents and supervisory
harassment. its liability may extend to
29 USc. 701. et 1I!iJq. '
.'
acts of non-employees. h, states that an
. .employees. The Supreme Court in
Meritor SaVings Bank v. Vinson •.471
. emplpyer may be responsible for the
t1eoa..1 ~.
U.S. 51 (1986). declined to issue a
acts of.nolHmlployees with respect to
(a) Harassment on the basis of race.
definitive.ru1e on the issue of employer. environmental ha,rassment of employees color. religion. gender.' nationalorigin.2
liability for claims of enviromnen:tal .
_where the employer. Its 888nts. or '
'.age. or disability coqstitutes
harassment. but ruled ..that COngresS
supervisoly employees
or should. discrimlnaUon in the terms, conditions.
wanted murts to look to agency
.
have known of the con4Ud and failed
and privileges ~f employment and. as ,
principles lor guidance in this area... ld. to tab ~teand appropri:ate
. , sUch. violates title Wof the Civil Rights
at 72.
. .
. ' '. .
cmreiCtive action. as feasible. Jmponant Act Qfl964.1IlS amended, 42 U,S,c.
Subsection (I) of § 1609.2(a) states that factors toconsidet are the extent of the
20008 'et seq. (title VB): the Age
.
.
the employer Is liable where It lmewor .empl.oyer~s control over the non- : .' .
Discrimination in Employment Act. as .
should have known of the conduct ~d . employees end the emplQyer's legal
amended. 29 U.s.c. 621"et seq~ (ADEA);.·
. failed to tab immediate and .
ntSpqnsibUity lor the oondud of such
appropriate corrective adion.A writtennon-emplo)'eeS. '"
'. ...;.'
.. t 1'bA!aeQjldell~ ~~;tiued ha~t
or verbal grievance or, complaint. ora· .' .: ,Propose<l §l609.2(d) sets forth the
that Is 1IOII,1IIXua) I.n ~tUl'& Sexual ~nt 1.5'
charge filed with the EEOC. prov.ides '. : Commi~on's JlOSltion ~t taking..
CXiYetI!d by (he Qmm:U.ss!OII" Culdell_ on
.
actual notice. Evidence that the
.··.measuresto prev8lltb,arassment is the
-Ditcrimillation Bec:a_of~HO'R 1604.11,
harassmentis pervasive may establish
_best way to eliminate harassment. It
.. ,(199i). : . :, ."'.' .
.'
.
.'
"'-'cti L_
houldtab II"' .lBec:ause\heJ'.arelllOnilcompt'!lbensive,the$e
con"u.. ve -.uow ledge. . '. ....
.stat' that···amp1M<er s, . . , a ' GuldeliMisupenede UOO6.lortbeCommission', .
es. ,an
_.1
Subsection .(ii) states that the..
.
steps nOOassaiy to preven:~ ~ent. . Guidelines on Dl$crlmlnatwll Because of Nationlll. .
employer is liable for the actsot its .
,from ~ tDch.idiilg DaviDg an'
.Origin. 29 O'R UI06.8 (1992).
. .
.'
I
mew
•
.
•
....
•
.'
t
,,'.
.;,
>
•
�,
·tt(
.
•
",
.
,
,
~
.
. Federal Register I Vol. 58, No. 189.1 Friday, October 1, 1993 I Proposed Rules
51269
the Americans with Disabilities Act. 42
color. religion, gender. national origin,
gender. national origin. age, or disability
U.S.c. 12101 et seq. (ADA); or the
.' age. or disability. It is not necessary to
where the employer or its agents or
supervisory employees.mew or should
Rehabllitation Act of 1973. as amended. mue an additional showing of
psychological harm:
. have mown of the conduct, and the
. 29 U.S.C. 701 et seq., as applicable.
I (b)(l) Harassment isverb81 or physical (d) An employer, employment agency. employer, failed tCl take immediate and
I ~nduct that denigrates or shows
joint apprenticeship committee, or labor appropriate corrective action.
'
hostility or aversion toward an
.
organization (hereinafter collectively
. .(c) An employer may also be
individUal because ofhislher race,
'referred to as "employer") has an
. responsible for the acts of noncolor, religion. gender, national origin.
affirmative duty to maintain a working
employees with respect to harassment of
age. or dIsability. or that of hlsIher ,
environment free of harassment on any
employees in the workplace related to
relatives, friends, or 8ssodates. and that: of these bases.1I Harassing conduct may
race. color, religion. gender, national
. (1) Has the purpose or effect of
be challenged even if the complaining
origin. age. or disability where the
aeating an intlmldating. hostile, or
employee(s) are not specifically.
employer or its agents or supervisory
offimsive work environment;
intended targets of the conduct.
employeQS mew or should have movl'D
(il) Has the purpose or effect of
(e) In determining whether the alleged of the cOnduct and failed to take
unreasonably interfering with an
conduct constitutes harassment. the
immediate and appropriate coiractive
individual'. work performance: or
Commission will look at the record as
action, as feasible. In reviewing these
(ill) OtherwiSe aaversely a.ffucts an
a whole and at the totality of the
cases. the Commission will consider the
individual'. employment opportunities. circumstances, including the nature of
extent of the employer's control over
(2) Harassing conduct includes. but is the conduct and the cOntext in which it, non-employees and any other legal
not limited to, the following:ocxurred. The determination of the
responsibility that the employer may
(1) Epith!iltS. sIma. negative
legality of a partiCular action will be
have had with respect to the conduct of
stereotyp~, or threatening.
\ !M~e from the facts. on a case-by-case
such non-employees on a case-by-case
basis.
' ,basis. .
intimidating. or hostile acta, that relate IL
to race, color. religion. gender. national 11609.2 Employer Aablfltu for harUarnent.
(d) Prevention is the best tool for the
origin. age, or disability;- and
"7
eUmin.ation ofharassm.ent. An employer
(il) Written or graphic material that
" (a) An employer is liable for its
should tab all8teps necessary to
denigrates or shOWl hostility or aversion conduct and that of its ag~nts and
' prevent harassment from ~g"
toward-an individual or group becausa
supervisory·employees Wltb respect to
including haviqg an explidtpolicy
of race. color. religion, gender;national 'workplace harassment on the basis of
against harassment that Is clearly and
origin. age. or disability
that is
race, color, religion. gender, national'
regularly colllIIlunlcated to employees.
I __ .1 on ••_11_ bull..u- 1.._.1.' 0'"
.
origin, age. or disability:
..,
expl.. h,t..... sanctions forb.a.rasSlnent.
PJ.IItAN ,waua.
au.u UUCLrWl. 4
,
. (1) Where the employer kneW or
~
elseWhere on the employer's ~s.
should have known of the .conduct aDd . developing methods to sensitize all
or clzculated in the workplace.
.
. failed to tab immediate end
.
supervisory and non-supervisory
(e) The standard for determining
..'
employees on issues of harassment, and
whether Verbal :,r.h.-tcal COIidUct. . appro'prlate.~ve action; or . ' inform.inR employees of their rightto
~, (2) Regardless of whether the ,
. • raise. and th roced
t _Jain th
relaUnatol8ee,
or.~on,gender.
.....~loyerkD.eworshouldhavemown.
,an
ep.
U1'98 ornu
g. e
..Jl __'L'''ty is
n ational.....: M.. ..... or' w.IICW.LUof e conduct,' .where the harassing. " 'issue of harasSriient under title W. the .
. "4'6'-'-"-0-"
-'--'en'tly' - c. .G ato . ,
·_..lva l
.
ADEA~ the ADA. and the Rehabilitation
owuw
.... ".u..
supervlsoriemployeeisactlngin:an .
"agency capacity." To determine
.
.Act. An employer should provide an .
-::reate a hostile or ab ve work
anvironmetit is whether a reasonable
whether the .. ft.......:_.. individual is .
effective ~plaint procedure by which
1"IA'Ni\ft in the ...._ .. or -'-:tar ' .
A&G&~
eIIiplo".w can make 'their comlP1ain.ts
INllLU
'
. acting in an
. ....aency~d
,"th.e
03-.
circwnstances would find the conduct
"'0
known 'to appropriate offidals who are '
intimidating.hoatile. Or abusive. The
circumstanCes of the
in a position to ad on them. .
.........sonable ftANftftl' ...ft_..J.......J includes
emploYment relationship and the job
.....
r-~. • .....u.onI
functi
rf
ed by th harassl.....
lPR Doc..23869 Filed 9-3G-93; 8:45 am]
c:xm.sfderati.on o~the' of
've
. ODS pe orm
e
"""'6
individual shall be examined.
AUNQ CCOII G'IO-O'f..(II
persons of the ,
victim'. rade,
"Apparent authority" to act on the
.
!lTtddDdudetlllCU dial pUrport to . . "jaIr.e." or
employer'. behalf .hallbe established
"'praDb." bat that IN boItne or .........'na with
. where the employer. faila to institute an
DEPARTMENT OF,THE TREASURY .
npnIliO .... coIGr. nlJaIoa, ~_.,..tlODAlexplidt policy against harassment that
31 Ci=A PIn 103 .
..
artafJ1, . . . . dIIabUIlJ· BlIIIllY•.Bu.fIoIk County'.is clearly and regularly communic:;ated ,
. .
,
7U P~d 1~ 1081 (24 Qr.1886J(drwdna ' t o emplbt:e88. or faila to establish a
" .
lBtpIDk: prI.IImtr ID lbawlaGt
t&Jina
Bank SecNcy Act RegulatIonS;
. '
- ..... ad .....WntUr.. 1CII('J B«Itc:tn •• I'IL. 891 . ree,sonab y aa:essible procedure by . .. ..----...... "'-'-- .... ~u_..._ 11
--
,'~ tstl'IS11a.l(f:tJiC.1M8);
.
"'WhIchviCtimsofharasamentciuunw ·.......IU_Yl~• • I"" nn_ ran.,.1'8
I~'"
. .
end .Tranlritlttal. of Fund. by Financial
~:'=~:Z:"
thet.rcomplaintsmownto.appmprlate
IMtItudoM;CorrectIon '. ',' ,
,
~udIDa ODIofp1Gl1Ur•. , .
, .ofticlals "hO. are in • position to act on
.,..
, ~ fDrsbrI p1tIDtUI'IlIoIIIIIIIto III
"complaints. : . '
'..'
'.
.
,AGENCY: DeParf;ment8J Offices, Treasury•
.'. m-.c. poIic:Japluttieldl acldl~ ,(b) With ~ to conduct between~: PropOSed rule; correction;
IIIh:Do1t u diIIuIbIDc u tbllIICU ~-). "cO-worUrs. an employer is responsible . extensi~ 01 CQinmentperiod. . '
. •-See, ..... 1Iodptr". ~ Ufo IN.
·for acts of harassment in the workplaOB
Co.. 112 11. lapp. ~(B.D,. ~ ll11Z)(~pcniIor'. that refute to l80B color re14Mon.
,~::On AUgust 31, 1993, the
.
IDfnqueatUMofnICWCommIDtllUCbu~
.. .
•
• ""&,,.
'
-"J'orIt9l8Cli:·siJyII. .
JDildiuDblobe .
. . ' .
ent ofthe "'-.. en...... rr........,_,)
"""":"'~JJ \.u ........... J
. m-ac...-tI,.. CNIted • boIdle wort . . ' .. aSee Ccinmiftascm Dec:I.Ikm He:.. YSF $-108
P l1shed a NotiOB of Proposed
~ Seeat.o~ ...... Gmup..rnc.. ~ ~ n-l~14 (nalIgiOUl~t). Rulemaking RelaUna to 'I'raiwnittal
a,. P.2d
1114 at &:4 (nil Cr. 1891) (c;ourt
. '. n-v'%S ~ J.uumw!t). 00i tmOC,
Orders for Funds Transfers and
ana
Y",
r---
-.....-.
=:=:===========
w1Ita"
:
=
too,....
1._
,=.w.~=;:!=
'. "=~~I= ~~~1.a:u·
'dtUll1 bunriplllc" WGald C:rate boItileE&:oCDedaSoaI (11183) 18831 (IIadoIW orfsIn
tDriroam4IIU).
lwusmtmu.
TrarumiittalsofFunds by Financial
Institutiqn& 58 FR 46021. The .
Department of Treasury is making 8
�24lJ98
Federal Register j VoL. 59. No. 92.1 Friday. May 13. 1994 I Proposed Rules
specific legislation. Under paragntph (C)(5}{i) more,other'taxpayers. purposely ,,'
letters received after the comment .
of this section, the assignment of B to assist
struct,.uresits attempts to influence'
periOd omcially closed. it has thus '
the legislative affairs department in aD.alyzing· legislation to achieve results that are , ' decid'ed to formally extend the comment
the bUJ and in drafting a position letter in " unreasonable in light of the purposes of period in order to give all parties an
opposition to the bill evidences a purpose,to, , section 162(e) arid section 6033(e). the . opportunity to express their view, s.
lnfluence legislation. Based on these fa(:ts;
neither the activity of periodically
,;
Commissioner can take such steps as are ' DATES: COmments must be received by
confinning the Procedural statuS ofthebill
appropriate to achieve'reasonable "
"June 13.1994.
.,
nor the activity of preparing the mutine, brief results consistent with the purposes of , ADDRESSEs! Comments should be
summary of the bill before March 31
",
section 162(e). section 6033(e). and this' ,addressed tei the Office ofilie Executive
sect"
'
"OC
constitutes influencing legislatio,n. With '
10n.
.
Secretariat. EE .1 Oth F1oar. 1801 L
th
od
~'!:~~~C:l~:b~=aft:r March (0 ~ffective date. This section is
'
Street. NW.• Washington. DC 20501.
3.1,it is presumed~ under paragraph (c)(4) of
effectivefor amounts paid or incurred ; Copies of comments submitted by the '
on ,or ~fter May 13, 1994, TaxpayerS.;
, public will be available for review at the
this section, that E engaged in the' activity'
, solely to make or support the lobbying ,.
must adopt a reasonable interpretation
Commission's library. ftlOm 6502. 1801
communication because the activity ' o f section 162(e)(1)(A) for amounts paid L Street, NW•• Washington. DC. between
commenced in the same taxable year as the
or incurred'prior to this date.
"
th h
f 9 30
d5
Co .
lobbying communication. These facts
Par. 3; In § 1. i62':"20. Paragraph (c)(5)
e C!urs 0 : a.m. an
p.,m.
p1es
'. dd d
d ' Ii II
, o f the notice of proposed rulemaking are
indicate that after March 31, E determined
,
1S a e to rea as QOws:
aVaI'labie m' the II
itollo'~"g
alternative
. the procedural status of the bill for-the ,'
......
purpose of supporting t,he lobbying
f 1.162-20 Expenditures attributable to
formats: Large print. braille, electronic
communi~tion by B and, accordingly. E
lobbying. political campaigns, attempts to
file on computer disk. ,and audio tape.
cannot rebut the presumption ¥ it relat~ to
Influence leglslatlon"ete.., and certain
Copies may be obtained from the Office
advertlsln~'
of Equal Employment Opportunity by
this activity.
Example 8. Taxpayer Z prepares a report
'"
'"
-'"
..
'".
calling (202) 663-4895 (voice} or (202)
that it is required by state law to submit to
(c) *, '" ","
663-4399 (TOO)
a state corporation commission. Z sends a
•
copy of the report to its delegate in the state
(5) Expenses paid or incurred after, FOR FURTHER IHFORMAT1OM CONTACT:
, legislature along with the taxpayer's letter
December 31. 1993. in connection with Elizabeth tAo Thornton. Acting Legal
opposing a bill that would increase the state
influencing legislation other than
'
Counsel. or Dianna B. Johnston•.
sales tax. 'Even though the letter to tlie
'
cert.(Jin local legislation. Tne provisions -Assistant Legal Counsel. Office of Legal
delegate is a lo~ying communication ,
of paragraphs (c)(l) through (c)(3) of this Cowisel. EEOC 1801 L Street. NW..
'
. (because it refers to. and reflects a view on.
section are superseded for expenses
Washington. DC 2(1507. telephone (202)
specific legislation). under paragraph'
paid or incurred after Decembe,r 31,.
663-4679 ( i ) (202} 663-'1026
(c)(5)(ii) of this section, the preparation of the
,(TOO). ' vo ceor
"
report does not constitute influencing
1993. in connection with influencing
,legislation.
:,
' ,
legislation (other than certain local
Tony E. qallegoS.
,'
' ,
Example 9. Taxpayer Y purchases an
legislation) to the extent inconsistent'
Chairman, Equal Employment Opportunity
annual subscription to a commercial. general with section 162(e)(1)(A) (a~ limited by ,Commission.
" '
circulation newsletter that provides
section 162(e)(2)) and §§ 1.162"-2OT(d)
tFR Doc. 94-11101 Filed 5-12-94.; 8,:45 am. I
legislative updates on pmposedtax
'
and 1.162":'29. '
'
Margaret Milner RichardSon.'
IIIUJ\lIG COOl! mIO-01-M
legislation. Employees in Y'.legislative
affairs ~epartment read the newsletter in
order to keep ab~ast of legislative ,
. , Commissioner o/lnterntil Revenue:
developments. Even if Y attempts to . "
IFR Doc. 94-11613 Filed 5-10-94; 11:23 amI DEPARTMENT OF THE INTERIOR
IIII..IJHQ COOl 4130-0104 ._
influence legislation that is identified and
tracked in the newsletter, under paragraph
Office 0; SurteceMlnlng Reclamation
(c)(5)(iil) of this section, the time spent by
and Enforcement
, employees of Y reading the newsletter does '
EQUAL EMPLOYMENT OPPORTUNITY 30' CFR' Part ftNt .
not constitute influencing legislation. '
COMMISSION
-
(d)Specfal imputation rule. 1£ one. '
29 CFR Part 1609
Colorado Pennanent Regulatory ,
, taxpayer. for the purpose of making or
supporting a lobbying communication.
.
"
,
' Program
uses the services or facilities of a second Guidelines on Harassment BaSed
AGENCY: Office of Surface Mining
taxpayer and does not Compensete the' Race, Color, Religion, Gender. National Reclamation and Enforcement (OSM).
second taxpayer for the full cost of the ,'Orl,gln, Age, or DI-.billty ,
Interior.
.'
services or facilities; the purpose and"
AGENCY: Egual Employment
ACTION: Proposed rule; public comment
actions of the first taxpayer are imputed ,Opportunity COmmission (EEOC).
, peri~and opportunity ~or public
'
to the second taxpayer. T,hus. for
'ACTION: Proposed rule; extension of
heanng on proposed amendment.
example. If.. trade a~ation uses the
comment periOd. "
"
,services of a member's employee, ilt no
SUMMARY: OSM is announcing the
cost to the association. to conduct
SUMMARY: The period for,commenting
receipt of a proposechmElndment to the
research. or similar activities to support on the proposed guidelines on,
Colorado permanent regulatory program
the trade ,association's lobbyIng
harassment based on race. color.,
: '(hereinafter, the "Coloradoprogram")
communication. the trade association's ' , religion. naUonal origin. age. or .",
under the Surface Mining Control and
purpose and actions are imputed to the
disability (58 FR 51266. OCtober 1.
,Reclamation Act of 1971 (SMCRA). The
member. As a result. the member is
1993) has been extended to June 13.
proposed amendment consists of
, treated as infiuencinglegislation with
1994. After the comment period closed. revisions to the Colorado rules
respect to the e~ployee's work in
the Commission received numerous'
" pertaining to bon4ing of surface coal ,
, support of the trade association's
. comments and requests by individuals, mining and reclamation operations and,
lobbying communication."
,
to submit comments. Since the
.
revegetation success criteria for areas to
(e) Anti-avoidance rule. If a taxpayer. Commission luls informally been
" ' be developed for industri~. commercial.
alone or in coordination with one or, ,accepting and ,reviewing commenl$ and or residential U5e¥'
'
================
============="
on .'
�U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
.
'Washington, D.C. 20507
FACT SHEET ON PROPOSED GUIDELINES ON HARASSMENT BASED ON RACE,
. COLOR, RELIGION, SEX,. NATIONAL ORIGIN, AGE OR DISABILITY
. 1:'he Guidelines were issued to help employers understand
existing law. Employers are constantly seeking guidance on these
issues. There were already Guidelinet;l on sexual harassment and
on national origin harassment, but none on race, color or
religious'harassment or on the other bases covered by federal
employment discrimination statutes: age and disability. Because
of the recent emphasis on sexual harassment, it was important to
clarify the fact that workplace harassment was prohibited on any
and all of the bases covered by the laws. the Commission enforces.
To omit· religion from the Guidelines is likely to mis.lead
employers into believing that religious based harassment is
permissible.
1.
2. . Since Title VII was passed in 19.64, it has-been il:iegal to
subject employees to different and hostile working conditions
.because of their race, color, religion, sex or national origin.
~is is because Title VII prohibits employers from
-discriminat[ing] against any individual with respect to his
• • • terms, conditions, or privileges of employment."
3.
~he Guidelines simply explain to employers the existing
rules about harassment. They were derived from case law, the
Commission's pre-existing Guidelines' on National Origin
Harassment, the Guidelines on Sexual Harassment and the Policy ,
.·Quidanceon Sexual Harassment. If clarifications' are needed,
they will be made before any Guidelines are issued •.
4.
critical point: Not all offensive conduct violates the law.
Bare.sing conduct rises to the level of unlawful discrimination.
only when • reasonablep~son would regard it es hostile or
~si".
.'
.
.
5.
Because the law is violated only when the complained of
conduct is sufficiently severe and p¢rVasive to be found hostile'
or abusive, Title VII would not be implicated when a supervisor
_erely tells subordinates that he or she' is Jewish, Muslim,
Christian, etc. Reasonable people would not deem a statement of
'one's wn affiliation,.byitself, to amount to severe or
o
pervasive .hostility to' those who,' do not share the same belief.
Nor· could it reasonably be deemed to be hostile to another's.
religious beliefs to wear a cross or a yarmulke. It is one thiDg
to expres. one'. OVD beliefs;aJlother to disparage the religion
or beliefs of others. In a divers, workforce, this is a critical
distinction and is the heart of non-di~crimination law.
�\ .
6.
'1'be Commission ba~ never taken the position that Title VII'
'probibits the st.atementof one's own. beliefs in the workplace ~
'1'0 the contrary the Commission has. repeatedly ruled that
employers must permit employees to wear yarmulkes and other
religious garb to work unless doing otherWise would cause safety
.problems or other undue hardship. In addition, Title VII
explicitly permits. religious organizations to emplQY individuals
of a particular religion to carry out the activities of those
entities.
'
'7.
As the Guidelines explain, however, 'the law does protect
employees from having to endure severe or pervasive conduct· that
i . hostile or abu~ive on the basis of religion. 'This is merely
an extension of Title VII's basic protection against
discrimination on the basis of religion. Thus, for example, an
employee has redress if s/heis' subjected to repeated epithets or
insults hostile to his/ber religion, just as an African-American
employee has redress when subjected to repeated racial epithets
at work. This affords protection to employees of all
persuasions. Thus, a Christian employee would have recourse
under Title VII if a "secular humanist" employer engaged in a
pattern of rIdiculing the employee's religiou~,beliefs.
8.
Although the,public is most familiar with sexual
harassment, the rule that it is unlawful discrimination to make
work conditions hostile, 'or abusive because of race, color,
,religion, national,origin and sex, first arose in contexts other
than gender. ~n 1971, in a case called Rogers V, EEOC, 454 F.2d
234 (5th Cir.1971), cert. denied, 406 U.S. 957 (1972), a court
held that segregating'Hispanic patients can create hostile and
discriminatory work conditions.for an Hispanic employee, in
violation of Title VII •. See also Rodgers y.Western-Southern·
Life Ins., 792 F.Supp. 628 (E.D.' Wise. 1992) (statements .that"you
Black guys are too f-~~ing dumb to be insurance agents" created a
hostile working environment), aff'd, -- F.2d '~-, 63 FEP Cases 694
(7th Cir. 1993).
9.
The portion of Title VII quoted above in , 2 makes no
distinction between the various. bases covered; race, color,
religion, sex ,or ,national origin. Neither have the. courts.
Title VII bas always prohibited employers from ~ubj~cting
employees to workplace harassment because of the employee's
religion. For example, in Weiss y. united States, 595F. Supp.
1050, 1056 (E.D. Va. 1984) the court said: "when an employee is
repeatedly subjected to demeaning and offensive religious slurs
before his fellows by a co-worker and by his supervisor, such
activity necessarily has the effect of altering the conditions of
his employment within ~e meaning of Title VII."
10.'1'he principle that employees have a right to "work in an
environment free from discriminatory intimidation, ridicule and
insult,- was recognized by the Supreme CoUrt in 1986.in Heritor
Sayings Bank y. Vinson, 477 U.S. 57, 65 (1986). Though Heritor
was a sexual harassment case, the Court made clear that it was
�applying principles applicable to other classes covered by Title
VII. The Court specifically accepted the principle that creation
of a hostile environment. based on discriminatory racial,
.
religious, national oriqin, or sexual harassment constitutes a
violation of Title VII. See.1.sL.. at 66. Just this year, in
HarrIs y. Forklift systems, a sexual harassment case, the Supreme
Court indicated that all bases covered by Title VII are treated
the same. '~Harris y. Forklift Sys., Inc., No~ 92-1168 slip
Opr at .. (Nov. 9, 1993) i .1.sL.. at2 (Ginsburq, J." concurrinq)
("Title VII declares discriminatory p~actices based on race,
gender', religion, or national oriqin equally unlawful").
}
�-
I
I ' I..,
Draft Questions and Answers on the Guidelines on Harassment Based
on Race, Color, Religion, Gender, National, Origin, Age 'or
Disability
O.
Could it be considered, religious harassment if an
individual, ' placed a Bible on his/her desk or wore a cross, a
turban, a yarmulke" 'a star of David or any kind of religious
talisman to work?
'1.
A.
'The Guidelines provide that harassment is conduct that a
reasonable individual would view as severe or pervasive enough. to
create a hostile or abusive environment based on, among other
things, religion.
It is inconceivable that a reasonable person
would view as', creating a hostile or abusive environment an
individual's statement that he' or, she belongs to, a particular
church, placement of ,a religious tome like the Bible on a bookshelf
or desk, or another's decision to wear a religious symbol to work.
Indeed, according to cases involving "reasonable accommodation,"
employers are required to accommodate their employees' expressed
religious need to wear religious garb, provided that doing so would
not create an undue hardship.
'
,
Q.
Is it permissible under the Guidelines for an employer to
conduct Bible study or prayer 'meetings in the workplace, even
though all of the individuals in the, workplace do not belong to the '
same religion?
2.
A.
An emploYer would have the, right to· conduct such
meetings. provided that individuals who do not wish to attend or
take part are not forced to and are not penalized in any way, by
their decision not, to atten,d.
See', LS.:., EEOC v. Townley
Engineering & Mfg.« Co., 859 F.2d 610 (9th Cir.. 1988).
,
. ' !
,
3'..
Q.
,Do the 'Proposed Guidelines affect an employer's freedom
to share his/her £aith with an employee?
' ,
A.
'The Proposed Guidelines are not intended to create any
new obligations on employer·s.' They were derived from case law, the
Commission l s pre~existing Guidelines on National Origin Harassment,
the Guidelines on Sexual Harassment and the Policy Guidance on
Sexual Harassment and they merely, explain to employers the existing
rules about harassment. Accordingly, the Proposed Guidelines do
not alter an e~loyer's existing right to express religion in the
workp~ace.
4. ,Q.
if a supervisqr who constantly preaches the benefits of
his/her religion repeatedly ~sks subordinates to accompany him/her
to religious services and the supervisor is constantly rebuffed,
could a chargeo£ harassment ultimately be asserted?,
A. ,This is a fact dependent question. "As the Proposed
Guidelines note, the totality of,' the circumstances will be
considered in making such a determination. But, if employees make
�clear that such invitations are unwelcome and the supervisor
persists in pressing his/her. religion on his/her subordinates,
existing principles of harassment law suggests ·that a cause of
action £or harassment could be asserted.
.
5.
Q.
Could one incident, such as placing a mug with. an
offensive symbol such as a swastika on one's desk, constitute
harassment ?,
A~
It is extremely unusual for one instance of. hostile
conduct to violate the law, but when the conduct is especially
hostile it may do so.
Some symbols are so patently offensive or
abusive that any reasonable individual would conclude that they
polluted the workplace environment. See Yudovich v. P.W. Stone,
839 F. Supp. 382 (E.D. Va. 1993) (supervisor's expression of anti
Jewish hostility such as keeping a coffee mug with a swastika on
his desk prominently displayed and in· public view may by itself
violate Title VII).
. .
.
6.
O.
Mayan individual discuss his/her religious beliefs in
the office?
A.
Discussions of religious beliefs with those who welcome
such conversations would not violate the law~ General statements
of belief that do not denigrate or show hostility to those of other
beliefs would generally not violate the law, unless the speaker
consistently persisted in lecturing 'or discussing religion after
the listener has asked not to be subjected to such discussions.
�SENt BY:
6-13-94 ; 8: 18PM ;
EEOC'"
TALKING POINTS
.. ..
*
202 456 7028;#23
ii
Proposed Consolidated Guidelines on Workplace Harassment
..
. Definition: The proposed guidelines provide that conduct towards an
employee constitutes unlawful harassment.on the basis of religion only
when it is unwelcome ~ when it is severely or pervasively
deIl:igrating or shows hostility.
.
,.
. The guidelines were nev'er .intended· to abridge the free exercise of
religion in the workplace~ In fact, a prohibition of religious
expression in the workplace would violate Title VII of the Civil
.Rights Act of 1964 .which is t~e law upon which the guidelines are
based.
.
"
1
'*
The guidelines are meant to, protect· the rights of all worker.sto
practice their faiths as they choose.
..
The 'guidelines do 'not bar:
religious expression in the workplace
wearing a cross of a yarmulke· at 'work·
having a Bible on one's desk
inviting a colleague to church·
.'
. The guidelines do prohibit:
-
using repeated and offensive religious epithets :i,n the
workplace
forcing employees to comply with someone else's religious
beliefs
•
The·proposed gUidelines are fuily consistent·with the principles·
embodied'in the Religious Restoration Act signed by the President last
fall.·
. . .
* . Charges ofreligiolls harassment filed with EEOC in
FY1992 totaled
524, 3.2 percent of all harassment chargee and .'4·percent of total
charge receipts. In FY 1993, EEOC received S87 religious harassment
'charges. ~3.1 percent of all harassment chax:ges and .4 percent of total
. charge rece ipts.
.
.
.
*
By the close of the original public comment' period {Nov. 30, i993)
EEOC.had received approximately 8S written comments. From that· time
until the present, approximately 33,133 written comments have been·
received. Since March 7, about 7 .. 325 call. have been received in
EEOC!s Communications office~
. .
*
The public. comment period for the proposed guidelines will continue
until June 13~ ~994. Written comments may be post marked by June 13.
,
"calk Pl:8 P
fi/9/94 • 10.5Sam/rw
�Wit11drawal/Redactiol1 Marker
Clinton Library
DOCUMENT NO.
AND TYPE
005. memo
DATE
SUBJECTrrITLE
Donsia Strong to Katherine Darwin re: EEOC (l page)
61711994
RESTRICTION
P5
This marker identifies the original location of the withdrawn item listed above.
For a complete list of items withdrawn from this folder, see the
'WithdrawallRedaction Sheet at the front of the folder.
COLLECTION:
Clinton Presidential Records
Domestic Policy Council
Stephen Warnath (Civil Rights)
OA/Box Number:
9592
FOLDER TITLE:
[Harassment - Religious and Consolidated Guidelines] [1]
ds60,
RESTRICTION CODES
Presidential Records Act· [44 U.S.C. 2204(a)]
Freedom of Information Act· [5 U.S.C. 552(b)]
PI
P2
P3
P4
b(l) National security classified information [(b)(I) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of thc FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute :i clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
National Security Classified Information [(a)(I) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrcts or confidential commercial or
financial information [(a)(4) of the PRA]
P5 Release would disclose confidential advise between the President
and his advisors, or between such advisors [a)(5) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document, will be reviewed upon request.
�TO:
I have attached material that Donsia and I received from
Claire Gonzales, Director of Communications and Legislative
Affairs at the EEOC, concerning its proposed religious harassment
and discrimination guidelines. The Senate
Committee has scheduled a hearing on these guidelines for June
9th.
As this material explains, the issue has exploded because
opponents of the guidelines argue that they may potentially
provide the basis for banning legally-protected forms of
religious expression in the workplace. The EEOC counters that
its intent is only to restate the law, not to make new law or
policy. According to the .EEOC, no behavior that is now permitted
will be threatened, but it acknowledges that in several instances
the language is somewhat broad and vague.
In order to consider the views EEOC reopened the comment
period and my understanding is that the EEOC i~ trying to
determine what is the proper course to take with the guidelines
(revise or drop).
At a minimum it appears that the EEOC will have to
explain/defend its use of the reasonable person standard which
has been utilized by some, but not all, courts.
In that respect,
the EEOC will be challenged to explain how its choice of this
standard is consistent with its claim that the guidelines merely
state the law.
.
In speaking with Claire Gonzales, Director of__~______~__
She has requested input from us, Leg. Affairs (Eric Senunus), and
other W.H. offices as to who might be appropriate to testify and
any thoughts we may have about the content of the testimony.
I
think that it is EEOC's
�6~
EEOC~
1-94· ;10:37AM ;
.
202
45~
7028;# 1
.17. B.' Bq;ual bploFleJlt OPPol'tual tJ co_i.aloB·.
Offioe of COll2luloatioDa u4 Legi.lative &ffa1rs
1101. L8tr••t. Inr, boa '02r1.
.
• ••1:a1Dgt01l, DC.. 10507'
JlU' (102) •• 3-4.12
.
.
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.
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(202)'" ..
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________________~--~--~--~~--------------
. 1'1•••• t.l.plloB. ~1l.appZ'opZ'l.t. officeaJM>ve if 1'0\1 40 Dot reo.l...e
aU toD\'allaDta. .
.
�. 6"'" 1-94: 10 :37AM ;
EEOC.. .
202 456 7028;# 2
JOSePlIj R.11OeN. J•.• Dl:1....W..flE, ,,.A1I1NAN
k'PWIIRQ~. (ENNED\'. MASSI<ttruSilTS
'IQ'hAIID .\I, MnnN1lAI.IM. Ollll)
j,)INlil& O,GQNCllll NllZONA
ilA,atelt J. 1JAIn. \/lIIIhlOoNT
OiOWiLL ""L1I1. AIoAaAMo\
PAUl SlMOPl:. ILli~IS
NlllIIIl!l "UtIlI.. WliCONG IN
IIIAlN"E FEINSTEIN. tA!JfOllNIA
ORIII~ G. 1tATC>i. UTAI1
&TAOUI 'THUIlIIIOND. tOlmt C:"'IlClUH4..
AI..aR .. SIM,$OII. NfOftlItllO
.
C:~ARLES E. CIlASSLIiY.IOWA
"III.IN IPKTIIl. P!I\!,,'''WA.. IA
HAMil. '''OWN, COtOIlAOO
"":I.UAIII S. C;OHr.N...JoM
lARRY mUlER, SOUTH UAlCOTA
1anittd ~tattJ
CAIIOL IIotOS&UlolAAUN. "''''''OI&; .
CI'IITHIA c. 1401iAlt. '!lIP' ~£MIJn
~...,,,..[
~matt
COMMIlTEE 0" THS JUOICIARY
WASHINGTON. OC 205,0-6215
'" bIll/8JI.... .,..~~ DIIIK'I'\lII
....R~ III. 1II8I.~4..... 01\11'1' lIT.." lIIaK'101t
WlIiOll1'f ~1t"e _ I l
1ii1O~~""
I'IIM'.
.luna 1, 1994
N'.Claire GGnz&1es
ef Ca.auntcltfons and legisl.tiveAfflirs
EEOC
'
1801 L Streit, N.W.
Offi~.
RDOIII '024
Washington, D.C.
20507
Deaf Ms. Gonzales:
On ThruldlQ, .lun. 9. 1194, the Subcoanttt••
Dft
Courts and
~dm1n1.trativ.
Prlcttce will hold « hear;", on EEOC's Proposed Gu1del;nes for Religious
Harrass.nt.
The hearing
11
scheduled to bagin at 2:00
.
.till Senai.e Dirk.en OfficI lundtng.
p.UI.
in Roo. 226 of
..
Given your expertise and inter'lt in" this1ssue, I would like to invite
you to tlstify at th's·heartng. Xn the ev,ntthat ~Oy are Ibl.:totestify,
pl.lla provide ., SUbcOIIitt•• stiff w1th a 100 copies of your written .
5:0D
,.111..,
Monday, June 6t, 1994. In addition, ,.e" eDpy Df ytJur
slJI8Irl (folltlwln, fhl rifT. pag.) of not .r. ,h,,,
on. P'II. Thil testfmony should b, 'Int to the fol'owtng address:
Subco..ltt18 on Courts and AGiinistrlttva PrActice, 223 Hart Senate Office
lutldifttr WashingtDn, P.C., 20510..6275 •
statelllllt by
tfl,tl_ny should inc1ud. ,
. I wou ld also 11k, to request that YOIl HfR·U 'your 01'11 pr.~.ntat i on to
five 1I1nut.s to .11~&llpl. U,. for quasUons. Yo"r written 5tatel1lent wi 11
b. prt~'.d in itl antir.ty ~n the hear1nJ record.
.
If ygu have Iny qUlstions, pl ••se call J1. Whiddon. Mljority CDunsel, of
(2D2) 224-4022. t look fDrward to yoUr tast;mony.
-r .taff at
Stnclrely,
~,
Chatr.n
Subca.mi'••• on Courts and
. Adnlinfstl"u ivl 'rlct1cI
""fcc
�WASHINGTON UPDATE
Palicy and Palitics in Brief
POSSIBLY ONE
'THOU SHALT
NOT'TOO MANY
BY W. JOHN MOORE
hearings on the guidelines this summer.
More than 40 Members of Congress have
already signed a resolution sponsored by
Rep, Howard p, (Buck) McKeon, R
Calif., urging the agency to drop religion
from its final rules on workplace harass
ment. '
The EEOC has rcceived so many nega
tive comments that the agency announced
on May 10. that the comment period on
the guidelines, which closed on Nov. 30,
has been reopened. Christian groups have
M
utter a few lewd comments to a
co-worker or hurl racial insults at
a fellow employee and the result
could be charges of sexual or racial
harassment at the Equal Employment
Opportunity Commission (EEOC). But if
a m~nager begins weekly sales meetings
by thanking "Our ·Lord Jesus Christ," is
the executive guilty of the
sin of religious harass
ment if somebody at the
session is a devout atheist?
The answer to that question has
embroiled the EEOC-which last Octo
ber unveiled proposed guidelines that
attempt to define the proper and improp
er roles of religion in the workplace-in'
perhaps its messiest debate in years.Con
servative religious groups have called for
a crusade against the guidelines, asscrting
that they are so broad that cases of reli flooded the EEOC with comments
gious speech could be ruled illegally denouncing the guidelines, according to a
offensive. Outraged religious leaders commission spokesman. Opponents say
assert that the guidelines would muzzle they resent the commission's efforts to
treat religious harassment the same way
religious discussions in the workplace.
Fearing their liability under the guide as racial or sexual harassment. Particular
lines, Christian critics say, employers will ly worrisome, they say, is the agency's
increasingly create a religion-free work decision that empl<?yers are legally
place. "These rules will have a chilling required to protect their employees from
effect on religious expression," warned a hostile environment. That means com
Forest D. Montgomery, the Washington panies that ban Pellthouse pinups may
public ,affairs counsel for the Wheaton also seek to avoid liability by barring
(Ill.)-based National Association of Evan employees from putting a crucifix above
gelicals. He and a host of other religious their desks or wearing a yarmulke'to
leaders say the guidelines violate the Free work, religious leaders said.
When the government even suggests
Exercise Clause of the 1st Amendment,
that religious displays could create a hos
as wel! as free-speech protections,
The guidelines are an agency effort to' tile environment, "you have drawn fire,
give employers more guidance about their big-time fire, five-alarm fire," warned the
Rev. Louis P. Sheldon; chairman of the
responsibilities under Title VII of the
L964 Civil Rights Act, which bars discrim Anaheim (Calif.)-based Traditional Val
ination on the basis of age, color, disabili ues Coalition, a grass-roots lobbying
ty, gender, national origin, race and reli group that represents 31,OOO,churches.
gion. The proposal has created a
Comments filed at the EEOC revealed
firestorm of protest on Capitol Hill. Sub wide-ranging wncerns. "If an employer
committees of both the Senate Juuiciary wants to state his personal religious
Committee and the House Education and beliefs or run his company on Christian
Labor Committee are expected to holu biblical principles and so state the fact
CLINTON LIBRARY PHOTOCOPY
publicly, he should be able to, Obviously
an employer cannot hire, promote or fire
based on rcligious beliefs, But to place
this prohibition under the sexual harass
ment 'hostile environment' category
would leave wide open the opportunity
for employer abuse," wrote C.W. Ran
dell, president of the Washington-based
Federal News Service.
"Or, for example, the office of a femi
nist organization ... might 'pervasively'
display materials opposing Catholic and
other fundamentalist Christian anti-abor
tion activities, creating what a 'reasonable
fundamentalist' might perceive as a hos
tile environment on religious grounds,"
said comments filed by Feminists for Free
Expression, a New York City-based advo
cacy group.
The American Civil Liberties Union
(ACLU) has also criticized the guidelines.
But unlike some religious groups, the
ACLU opposes eliminating religious
harassment from the rules. "That would
send th'e wrong message to employers
that religious harassment is not a prob
lem," ACLU legislative eounsel Robert S.
Peck said. The ACLU wants the EEOC
to draft more-specific guidelines, he said,
"Getting rid of the regs entirely is a bit
of an overreaction," added Steven
Green, legal director of the Silver Spring
(Md,)-based Americans United for Sepa
ration of Church and State. "EEOC
guidelines can cover certain actions with
out infringing on freedom of religion.
People on the extremes are raising undue
concerns. "
From 1989-93; the number of religious
harassment complaints filed with the
commission ju mped from 196 to 319. Still,
those represent approximately 2 per cent
of the total number of complaints at the
commission.
.
Most religious harassment complaints
are filed by people who say that they were
mistreated and harassed because of their
religious beliefs. The proposed guidelines
were issued, EEOC officials say, to let
people express their religious beliefs with
out fear of reprisals in the workplace.
Some religious groups, such as the
American Jewish Congress, support the
EEOC's effort to',address religious
harassment.
Elliot M. Mincberg, legal counsel for
People for the American Way, a Wash
ington-based liberal-advocacy group,
chided conservative religious organiza
tions for their efforts to eliminate guideNATIONAL JOURNAL 5/21/lJ4
1191
�u
lin.:;s ,;l{il,:he lI1aintains, ai.:tu;dly pruteei
relig,i,b'li, "Their CUlll,<;;rn is III preserve
rlloni)/n the juh fur prllselytizillg, Iclluw
'~Illph)y'ces':' hc said,
Trl(lliti',;nal Values Coalition !cader
Shdtl~\I1'acknowledg\!d the importance
of th\:\ight tn expl:ess olle 's' rei igiolls
views'.Jn the workplace, "In conservative
Chri~fi'll1 circles, it is part uf the l1()rma
live "::,xperience to be evangelical ahout
Chrhl;,!nd,yuur relationship with him,"
hcs:iiW
Bll..['employers must he (areful of
errillg~:,it)o far un the side uf employees
p
o
A
T
E
with Sl!"llng religious beliefs, III late .Ian
u,lry, ftir ex'llllple. a kdcral judge ill
Michigan ruletl that a l-luliday [nl1 may
have viulated the: 1,'lw by firing a pregnal1t
restaurant worker after Christian staff
memhers were upset by the woman's talk
about having an abortion. "The employee
who believed that abortion was morally
pel:missible was identified as the 'cause'
of the prohlem, as opposed to lhe Chris
tian employees who ubjected to it,"' rult:d
Judge Richard A. Enslcn of the: U.S. Dis
trict Court for the Western Distrkt of
Michigan.
•
:'i,:
BY JAMES ·A. BARNES
"'.,',
"
..
.
lW,hiS, ~s vi~tage," hospital.lob~)~ist
";'
rvllchad D. BlOmbelg sdld,
:.!.'; 'dcseribing a deal cut by \-louse
Way;"il'nd Means Committee chairman
DaniRi)stenkowskL D-lIl., with the
Healifi'Insurance Ass;)ciation of America
(HINA) to buy II truce on health care
refol;i11.· "
'
R(i:~tel1kowski, according to an HIAA
mcnl·().'r:lndum, offered to' back some
ih:ms.~in:ihe group's wish list if the HIAA
agre'e(J put to gear lip its public relations
machinery against other provisions in the
hill-at least not while Ways and Means
is marking lip the legislation. The HIAA
hasn't formally accepted the tradeoff, but
its president, Willis D. Gradison .I 1'., has
said that he is "optimistic" that the
group's e:xecutive com
mittee will approve it.
Vintnge it may be. But
like the old advertising promise to "serve
no wine before its time," the premature
disclosure of the deal, first reported in
The Wall Street .low7!a/ on May [,7, may
complicate Rostenkowski"s efforts to
round np similar agreements with other
key players in the debate:
"This is not his way, to deal with an
interest group and put it in the newspa
per," Ways and Means member Michael
A. Andrews, D-Texas, said in an inter
view, Now that the deal is out in the open,
rival lobbyists and Members of Congress
may start to criticize it, which could
cramp Rostenkowski's negotiating wom.
And it's far from clear that Ros
lenkowski has bought peace with the
insurance industry. The nation's five
higgest he'-1lth insurers have quit the
HIAA; they now have a rival lobby group,
the Alliance for Managed Competition,
that differs with the I-IIAA on a number
of key issues. Smaller insurers have set up
another group, lhe Council for Afford
able Health Insurance. (See N]. 1115/W. p.
106)
In~alrl!r!l'" leader Willis D. Gradison Jr.
TheY',may hold their fire on health reform.
}{;',
,','
119:f':NAIIONAL JOURNAL 5121;94
Still, quieting the HIAA could give
Rostenkowski some breathing room, Last
fall, the association launched an effective
k levision advertising campaign featuring
a fictional couple, "[-{arry and Louise,"
who warne.d thaI President Clinton's
n:form proposal would crt:ale a giant
hure:\lH.:racy that wuuld limit individuals'
discn:tion in choosing a healtli care plan.
Rostt:nkowski and GraLiislln, a former
Republican Ways and Means member,
began talking about a possihle deal in late
January, said Lawrence F. O'Brien III, a
partner in the Washingtnn law firm 'of
O'Brien-Calio who is an outside lobbyist
for the HIAA. After that, HIAA and
Ways and Means staff members met at
least weekly to hammer out udails of the
agreemt:nt, O'Brien said. "It's been a very
prolonged and intense dialogue."
Among the HfAA's chief ubjections to
the pt:nding legislation arc provisions that
would estahlish budget caps on national
health care expenditure,; and expand the
mt:dicare program to provide coverage for
people who can't afford to buy it.
[n return for the HIAA's silence on
th()se issues, Roslenkowski said that he
was willing to support several amend
ments to the bill that would give insurers
more flexibility in offering health cover·
age under a reformed system.
For instanee, the bill as approved by
the Ways and Means Health Subcommit
tee would not allow an insurer 10 deny
anyone coverage because of a preexisting
condition. But Rostenkowski's proposal
says that during a three-year phase-in of
the reform package, insurt:rs could deny
coverage for as many as ,ix months to
anyone who had turned down a chance to
buy insurance during the past 90 days,
That is intended to prev.:nt people from
seeking insurance only when they get sick.
Rostenkowski also reportedly signed
off on proposals to let insurers choose
what kind of gmups they would write
policies for, rather than requiring them to
provide insurance for all segments of the
market, and to let them assess different
rates for individuals based on their age,
instead of an across-the-board rate.
Rostenkowski is renowned for assem
bling a majority on his panel by lining up
support from intt'rcst groups. But his nor
mal style is to unveil his deals as a pack
age, which make them less likely to be
picked apJrt.
''I'm sure he doesn't like for this to
come: out in drihs and drabs:' said lobby
ist Bromberg, the executive director of
the Federation of American Health Sys
tems. a group of for-profit hllspitals.
There's already some apprehension
among liberal HOllse Democrats about
�., SENT .BY:
6,-13-94 ; 8:10PM;
"
EEOC~
202 456 7028;# 2
.
. ORAL
S~A'RIIBJI't
. OJ'
noUGLU GI.LLBaos l1 ·. ·BDCU'J.'rn DDtBCTOB
U. 8. _QUAL BllPLOYKBiI!' OPIORTDIII'l'Y COKJU:88IOJ(
8UBCOJDlIftBB.
0.
BD'OU IJ'IIB
COURTS A1iD. aJ)XDrISTRATXVB PRAC'l'ICB
COXlll:ftBB
o.
~
JUDICIARY
. UJlI!'BD STAUS 8BDD
JUlIB 9, 199t
�SENT ,BY:
6~13-94
.EEOC.. .
8:10PM
202.456 7028;# 3
. oral state.ant
Afternoon, Iam·.Douglas Gallegos', Executive Director· of
Good
the
E~al
Employmentopportunit¥ co.mmission.
'1
li~e
.would
to ::
introduce El1.zabeth 'Thornton', EEOC 'sActing Leqalcounsel,and
Dianna Johnston, . Assistant. Legal Counsel for Ti.tle'VII policy •
. We are'heretoday to testify before theSubco:nmi.ittee
regarding the Equal ,EmPloYm.ant opportuni~yc~mmissio~'s ~roposed
Consolidated.Guidelines on Harassment, particularly f~cusinq our
.
.
,',
.
.
'
~
.
'
,comments 'on the religi<;>us harassment ·provisions.
.
These
guidelines would pro.ti!ct from unlawful harassment. ·those' wishing,
to expres~ their faith "at work, just
protect
w~rkers
as
the guide~ines WOUld.
from beinqforcedtocomply.with someone else's
religious beliefs.
Let ~s beclear'that the gUidelines are intended to explain
.
e~isting
;
1
.
,
law, consolidatingexistinq judicial and Commission
. .
.
precedent~
' ,
,. '
"
"
" ,
,'"
not t() create any new legal theories or inany'way'
abridge the.freeexercise of reliqion in th~ workpla.ce.
"
.
. . , "
'
g'Ul.delines pro:vide that conduct towards an employee
"
The'
..
'
.
const~tutes
unlawful· harassl1Jent only 'when it is unwelcome and' when ,it
severely or pervasively denigrates or.showshostl1ity on the
basis of religion •...
contrary' to ,some erroneou$ commentary, the ,guideline'S do nQ!
prohibit religious "expression in the workplace.
such. a
prohibition would itself violate Title VII of theei"il Rights"
Act of 1964.
ThUS, While the proposed gUidelines wpuld prohibit
1
�'SENT ,BY:
, EEOC....
, 6-13-94'; 8: llPM
202 456 7028:# 4
using-repeated and offensive relig'ious epithets intheworkplac:e,
the guidelines would not forbid wearing across or a yarmulke at
work" having a Bible, on one's, desk, or inviting a' ~oll'eague '~o
.
,
,
"
,',
church.' As you know,~ 'the Co~ission has viqorousiy defended the
'"
.
.,~.,
.,',;.
...
'
.
,
,
'right of-',employees in the workplace to exercise their, ,religious,
,
fafttJ,s ~'
,
"
The public comment'period for 'the proposed guidelines will
continue linti'! June ,13,' 1994 .A~Y ~;n~lry;:~:~~,~*::i:Y1es~woui·d-:-:ma:ke·
..".
".
C~'9x.:~,~~<~,~,g~*¥.~~~,~Ji:::~'l1~e,l1lR~?Y~iT:i:~7.'I,l~~~:;;~gui~:r:~<!-;~9('7P.~oh ~pi,~~~~~- '
.
, . . . .
.
ilnt~s.iv.~,,,,:"r,,f!-1-iq'io~s:t,.~~r~~~±.9,I)~PUt~~h~~-r;,emp~eye:r;s;-~ou;t~",::ns>t
, 'l~W:~~l).~~bC;l~~SUCh-ta*P,r,(!ss,i~n. , '
In 'reiterating eXisting .law/'the proposed 9uidel'ines~re
fully consistimtwith th~ principleseinbodi~d in
the
Reliqious
Freedom Restoration Act, signed by the President this ' past fail.
We would
H~wever,
be,
9lad to
answer ,an~'qUestions
because we are 'sti'll'
J
"
you may have.' "
in'thecommen~period
and .because ,
'.
any action on these proposed guidelines requires approval by:the
full Commission, :it would be inappropriate to commit, at/this time
to'any yonclusions conce~nin~ .or suggested' cha~ges,to the
,
guidelines.
,
,
'.
'
"
�6-13-94 ; 8:11PM:
'" SENT ,BY:
EEOC~.
202 456 7028 :'#, 5,
. ,'STATEl\fErq OF
Et,IZA.BETlIM. THORNTON,ACTlNG LEGAL COUNSEL
"U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
.
,
,. BEFORE THE' '
SUBCO:MMl1TEEON COURTS AND ADl\fiNISTRATIVE, PRACTICE
COMIm'ITEE ON TIm ,JUDICIARy
"UNrrEn'STATES SENATE '
, ,
.
.
-
JUNE~,
.
:",
.
,"
1994
. ,
l
;.
.
,
"
. ', .
'
.'t,.'
"
"
.'
,
~
.
:'
,
�,
"
EEOC~
6-13-94 ; 8:.1 IPM
SENT BY: ,
"
'
,
"
"8WUlary of 'f•• timoD!
,propo••a corasolidated
••
•
202456 7028:# 6
,
Oil
'"
"
KarallllJll.ut GuieSoliDe.
~
A
On Oc~ober 1,: 1993, the EEOC published its Proposed Guidelines
.on Harassment Based on Race, Color, Religion; Gender, National
oriqin, ' Aqe' or' Disability.
,The oriqinal, comment period. was
extended due to unexpected interest in the Proposed Guidelines I and
, villclose' on June' 13" ;1.994
D
•
'
,
'
'l"ho\lsands " of Americans have expressed concern that the'
Proposed·Guidelines were~esigned to supprecs reliqious expression,
by employees in the workplace •. ,This is simply wrong. The Proposed
Guia~lines vereintended merely to explain and interpret existing
, ~awrather than creat.e new legal ~eories. ,Existing law ,makes
clear that harassing conduct. is unlawful 'when it·is'unvelcome anc.i
'when, i t &'ev;.l:"~y;:-or~~~,s.t~~ly~deni9rates;-:"or~sh.pwS~hostl-];-ity~on
the basis of race, re11g10n, gender, , national· origin, age or
disability'•. Thus, contrary to sugqestions by critics, the Proposed
,Guideli~e'sdonot' provide that. it would be unlawful to wear a cross,
or yarlDulke,' have a Bible onone;s cles~ or'invite a colleague to
church" , sirice 'such actions wQuldnot be hostile, severe or
pervasive.
S~e valldconcerns bave been ~aisec1witb regard to certa1ft of
the ,provisions of~e Proposed Guidelines such as the provision
'articulating the standard for evaluatinq hostile environment
harassment ,and, ,the provision defining harassmel1t as including'
hostile conduct toward' an individual because of the protec:ted class
status of his or her relatives or associates. In addition, concern
has ,been expressea regarding' .the .' interactioz:! of the Proposed
Guidelines and the First AmendJilent ri<,Jht of free exercise of
religion, and with the recently enacted Religious Freedom
Restoration Act.- In order to understand and respond to these and
other coricerns, Commission ataff have . .t with representatives of " .
several interest groups] ,
'
,
. " Although deletion of religion from the Proposed Guidelines JDay
Beell like a simple solution, COJlllllission staff remain extremely
ca~tious about 'treating one protected class ,differently from all
others. Reli<,Jiousharassment is an unfortunate reality in many
workplaces, .and ~ any action that ,WOUld,' weaken the' prohibition
against such conduct should be very closely examined.
The
commission con'tinues to receiVe, analyze and evaluate coments, and
its reconsideration of the Guidelines viII be informed by these
comments.
�SENT BY:
6-13-94
EEOC....
8: 12PM
,202 456 7028:# 7
Jlropo••4CoJUIolidatoeS B.ra.alL~Dt GuieSeliaes,
.
"
Thanlcyou far providinq the opportunity to 4iscuss,theEqUal
~plQyme~t
opportunity
Guidelines on Harassment.
,Commission's
,Proposed,
Consolidated
'MY CODUDents', today, vill be necessarily
l.imited because the comment period on these Guidel'!nesis still
open and the COlDlllents will have to'
be
evaluated before any final
decisions can be made .. ' As you know, on,october 1,' 1993, ,the
c01lJ.1llission published a Notice of Proposed Rulemakinq in the
Fe~eral
Register promulqatinq Proposed' Guidelines on, Harassment Based' on
Race, Color, Reli9ion~' Gender, National Origin, Aqe or Disability
and invited public cOJl1Dl~nt.
The original commen~' period r:an'for '
sixty days, arid, due to an unexpected interest!n the Guidelines,
after the comment 'period closed,
the - Commission extended the
comment period to June 13, 1994.
(
i
There has been a lot of confusion about ,the purpose and effect
of the Proposed Guidelines, as well as the law on which they are
based~ vlthre~ard
to religious harassment.
This has prompted an
,outpouring of ~oncern' by thousands ,of Americans who care deeply
-about. religious treedom, and ve are qratefulfor the opportunity to
Bet the record strai9ht.
The'gist,ot the criticism leveled at the ,inclusion of-religion
!nthe Proposed Guidelines is that it represents an attempt by 'the
Commission to articulate a new rule designed'to suppress reliqious
1
�SENT BY:
EEOC....
'6-13-94. 8:12PM
expression by employees in the workplace.
.
you know,
As
202 456 7028:# 8
This is simply wrong. .
. '
for thirty years .'1'i tIe VII
has
.
protected this
country # s workers frOD. discrimination in employment on the basis of
.thairreligious
belief8~
,The' Commission.has strongly defended the
,right of employees to exercise their religion' in the workplace,
.
.
'
"even when empl,oyers hAve found ,it inconvenient to accommodate those
beliefs.
originally enacted by Congress, Title VII of the Civil
As
Rights Act of .1964 prohibits employment .discrimination ,,on the bases
.
.
..
.'
.
,of race" color, religion, sex and national origin.
Congress has
'.
also afforded,employees protection against di.scriminationon the
,
.
-bases of age and,
,
mor~
recently, d,isabillty.
From
its inception,
"Title VII has prohibited discrimination that affects hiring, firing
,
"
or other
tang~ble
job
benef.its~
have consistently held
th~t
In, construing, Title VII, courts'
'i talso protects' employees who are
.
. ' .
. '
:.
.
S~bj ected to sev..e..~~~or..,-p.er:vas-ive-"7hOs~i-l-lt.I--beC~Jl.S_e-Qf:"'-their..=race"
..
religion, or othercover.d bases.
)
'
"
,hH'aSSl1lent•. The
'O~S.S7,
Supreme Court in Heritor Savings V, Vinson, 477
66 (1986) and in Harris
y~
Forklift Systems, 62 U.S. L.W •
. 4004, 4005 ,(November 9, '1993) hashelel that harassment violates
....
<
'
"
Title
~I,
and that-Title VII applie& to all of the statutorily
,covered bases.
-~o
-clear
up the
misunderstandings surrounding the Proposed
Guidelines, it m~y·.be tielpfu~ to provide some historical·cpntext.
�6-13-94
.SENT.BY:
EEOC.... '
8: 13PM ' ;
202'456 7028:# 9
.
'
,
,
7he' primary force behind the, initi.tionof the Guidelines was
former commissioner Joy Cherian whovas'c~ncerned about the lack of
,
.
,.
.
,
,
.,',
guidanc~' on the' subject 'of racial' harassment.
.
.
"
Prior to the
.
.
CUld.li~eB~ ~be,commissiOri
deve10pment of the Propose4
had issued
separate Guideli~es' :for oniy sexual and national ~riqin harassment.
Znstead of'continuing .' to addresli harassment, on a piecemeal basis,'
',tbe
".
'. . '
Comm.1ssl.ondetermlned that CJ\lidellnes ,addressing
.
,
.
.
.
.',
:.
.
Df"'prohibited~araS6mentin
bases
.
~
.
'
all protected
the' workplac.e
,shOUld' be
dev.loped.
in ,dra.ftirigthe
P~OPOS~d~' Consol,idated, 'Guidelines, ' EEOC's , "
. Office of Legal Counsel sC;;ught .toconsolidate t~e~ty years, ,of
.
,
,-
'
precedent~~The
judicial and eolnmission
Proposed Guidelines were'
, intended ,to
'?·t'ather than ·to
•
.:;~!
, The ·,Commission simply combined
neviegal theories.
.
..
.'.
.
informatl.on and interpretations that·cou.rts and the Commission had
create
.
"
. '
,
. '
.
'"
articulated :for many years.
J,
Conduct ·that ~~g.Iat'eS1personal charClcteristics Buch as race,
.
.
..
,"
,
religion, or gender is never nice
,!'he
...
or pleasant to exPerience,
"
~establi8hed
.
. '..
\...
but it
body of .law d.oes not
.
protect employees ~rOlll .v,ery insult 'or' offense that com~s their way'
.
,.
..
"
and" it
does
complalnt~
not
cover
the
hypersensitive
employee's
every
The Supreme,court. bas: ,maCle "clear that harass1J19 'conduct
is unlawful only when it is unwelcome
~ndwhen it severely or
,pervasive~y denigrates or shows hostility on',thebasis of race,
3
..
':::,.
�SENT BY:
202 456 7028;#10
.EEOC":'
reliC)ion, 'lender,. national origin,
age·~rdlsability •.
The law'of
workpla~e har~ssme~t recognizes ,that' when conduct' is severely or.
pervasively abusIve because of one of those protected bases,
.
,,<
,
•
'
".,
ft
·of£ends 'l'itleVII's broad rule ofvorkplace equality".' Harris y •
.
.
'"
. ,
,
.Forklift Systems;
Bu~~estions
62. U.S .. "L.W•.' at' 4005.
'l'bus,
contrary to.
by their. critic~1 ·tli.e . . Proposed Guidelines.' do
or'
provide that'itwould be unlawful to wear .• . cross'
.
a 'COlle'ague
have' a Bible 011 your desk' Dr invite
not·
a yarmulke,'
to ~hurch~. Such·
actions would be neither hostile. n~rsevere.nor pervasive..
The
C01IIIIlission.· appreciates the con'cern th,at overly cautious' employers·
.,
"
'..
'
, , '
may misconstrue .the Proposed Guidelines
til'ai\k~ct))
and resort to
. p:roh~t)fti=i~o'!~_~rea:.tgtous.~expresS'ion=:.to~av.oid·. ,any :·.p~ss'i'ble .'
. r;i;ab::tl=:ity;i,' .. Not only are the Proposed '·Guidelines not' intended' to
"
'
.
,
create such r~:sult, such a 'broad policy ~ould l&kel~:.Z:rJt,l:1-::;a.fQuJ.:.!->of
,.
Title VII's re~~r:e~entthat ~mployers.reaSQ.nablY accommodate an
employ~ ',sr:..e~l'ig!t.o,us,; ,exercise •un'less' doing
•
"
.
".
~~'
.
p
.¢J!._It ........
so: would be' an 'undue
::;;;= ' _
:c::Jz ,~_-_..
Or
_
_
_
_
_'
••
_'
:
..' ha*dshiP'.--"AnY-·fina~l-GUrderiiles.~ . COUla~.
Jl~Jte7:1.ea.r-t:lj~~-BUCh~~j,~.
et,
~:~:m-...=.e=nei,ther_r,e_qv1~ed nor p=erm1s!.ible.
. '
'.
.,
.
.
.
.
r'
.
.~.
~,
,
co:m:missionstaff acknowl'edge that COmIllEmtors have .raised ~ome
.
.
,
' .
'"
valid concerns ~For example: ..
.; ,
••
The
Proposed
.' includes,
,'Guidelines
definition
of
"harassment
as one. of tl1reedefinitions, .. conduct ,that
"otherwise, adversely affects
[S1609.1(bl(1) (iii)l.
em~l,oyment'
opportunities. II
This language w8staken directly
··4
�.6-13-94
. SENT BY:
,I
'.EEOC":'· :
8: 13PM. ;
..
.'.
. ~ (",
202 456 7028;#11
,r
from the.Guidelines on .Natio:n~l origin .harassment.that
have been,ln 'effect "since '1980., Critics ,'are ,correct,
however,
in stating: that. courts' have not. used this,
lanquage.;.Herice, the concern that tbelanquclqe mi9htbe
I
~
.
mi$C:o.n~true4'
'as
an att.empt' t~ 'create 'a 'naw category' of
haras$mentls wa,11- tak~n •.
.....
I.
'
. ,
..
'
.:
. Much,:of the criticism foeuseson the prOPQsad~uidelinesl'
articulation of the "reasonable pars,on" standard 'used in. ,.
.
.
i
. I
'.
,
!
'
/,.
. determiiling whether 'a hostile work. environment .exis'ts •.
IS 1609.1.(c»).·
I
,
,
"
This st.andard .far "reasonable person'·
I
allows .
ieconsiderationof'theperspective of. persons . of
'
.
, .thealleged .victim's race, ..~ ~.'. religion". etc:_"
critic. argue . that :th:is may be. interpreted ,~~" mean 'tb~t
,
I'
I.
, f
j
,
. alleged ·harassinqconduct wi11be' jUdged~olelY from.,. the
. ,'.
.
,
" ' , . " ,
'j
•. subjective,
.I
., complaining
,
and, ever
party~
chang-ing, . standpoint
.
They
~
'.
.
further
Of . the
cbntend .. that
the'
stanciard is so subjective and va9',u~ that warY employers"
,vill.feel forced taproh~~it any religious:expression iii
anyone~
the workplace rather' than risk offending
,
,
:In
to
articulating the .,tandard',:the, Commission's ir.-tent was
retain,
. perspective
an
objective
while
rather
takinq
than' a
account
of . historical
discriminatIon . aimed at various groups.
5
,
\
,
subjective
;J:t was
riot
�EEOC....
.. SENT .BY:
,
202 456 7028:#12
intended, ~O'", ,p~ovide, special ,'protection,' for
,
;
the
!
hypersensitive employee. Given the amount of c'ontroversy'
,\.
,
'generated by thispro,vision, however,· it, is ,clear that
I'
"
'. the anguage ahould be revised ,to more accurately: reflect
l
"
the int~nded,.ea~inq •
.,' i '
.,
••
'l'h~re bas also been a substantiai amount of comment'on
that: portion, ot the ,definition of ,harassment that'
includes ,bostl1ity,towar'd' an ' individual' because of' a
,
'
covered'characterist'ic~f
I
!
or
associates.
Some cODentors'have 'IIIisconstrued this lanquag'e to mean'
.' .
t
",
their'relatives,
,that ,n 'empioyee'sassociates 'canbririg suit a9'ainst.a~
a
its intent was ,simply that an employee bas a
employer.
claim underanti~iscrlmination laws if 's/he is subject~d
,
to severe
•
'he/sbe
:f
' .
"
or pervasive hostility
•
"
•
1,
•• '
»ecause, for,example,
.'
. '
is 'iDarried: to a' person'
of
••
,
, , " .
-;.
,another race' or
J;'eli9ion~ "
! '
••
,,'l'he·:final,and' overarching concern expressed in ,the
comments ..is' the 'intera~tlon of the proposed,' Gulc;lelines
and' ,'the First, Amendment, 'rfght'of free' exereiseof
religion.
'I
I
concerns
that
have
been
raised, by
the
Guidelines' critics... I)uring -the original 'comment per,iod
1
,
;The commission is sensitive to the First
Amendment
;.'
"
,
in'the fall,some()f the' ei9'hty-six comments ,received
focused
on ,.' whether
the' inclusion of religion,' in the
6
,
,
�SENT·BY:
EEOC.... ·
.: 6-13,:-948: 14PM
Proposed
Guidelines
guarantee' 'of
free
vioiatedthe
'exercise"
202 456 7028:#13
First
Amendment's
. Legal. Counsel
staff
immediatel.y began and is continuing to explore the First
r
Amendment issue •
. '. Hanycritics " are
particulariy
concerned
that
the
'cUidelines conflict with the recently enacted Rellgious
Freedom Restoration Act (RFRA) .. :·RFRA generally provldes
.
'that the gover'nment 1I1ay not6ubstantially· burden free
'exercise, even by a neutral rule, unless theqovernment.
has
a compelling
interest and.:soes so using the ,least
restrictive means.
R:FRA had not been 'enacted when the'
Guidelines were originally pubiishedfor comment.RFRA's
potential impact. on the Proposed Guidelines .is being
.
.
analyzed by LeqalCounsel and willcez::to.inly be addressed
by theCommis.sion 'during 'its reconsidero.tion of the
;'!
j
.
Proposed Guidelines.
In order to understand,and r~spond to these and other concerns
involving ~he, inclusion of reliqion in the Proposed Guidelines,',
Co~issi~n staff have met with representatives of several interest
gr~ups,
including an "Ad Hoc Coalition" composed of the 'l'raditlono.,l
Viltues
coalition"
Association
ot
the
Family, Research
Evangelicals,
council,
the Center for
Law
the
,
National
Religious
Fr~edODl" the Christian Legal Society, the American Civii Liberties
Union.
The representatives at that February 24th meeting expressed
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concern ',that
the
Proposed Guidelines were
overly
broad
and
ultimately wO\Jldforce employers wishing to avoid liability to ban
I
religion from' the workplace entirelY.
Several representatives
Buggested that religion should. be removed from the Guidelines •.
,
on KarCh 18. 1994,
rei~9iousan4
commi.~io~
'
staff 'met with ariother qroupof
civil liberties organization&that arqueo
.
,
that
removing religion from. the 'Proposed Guidelines would send the wrong
" &i91'-'a1 to employers by undermining Title VI; I ' s
religious'. expression
in
the
workplace., '
protect'ion of
Among ·the
qr()UPS
represented in that Beeting vere "the Baptist Joint ,Committee, the
American Jewish Conqress,tbe General Conference of Seventh-day,
"Adv~ntists#
,
the American Jewish Committee, 'the Anti-Defamation
,
League of B'na! B'rith and People for the American way.
It should
:
be noted that'those representatives also expressed concern that, as
pro~osedll
portions ". of
mi.in~rpretation.
,
)
I
,
'
.
Guidelines
the
were
subj ect . " to
They suggested that any problems with vaqueness
:
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couid best be solved by including specific examples of what does
and!does not constitute prohibitsd reliqious
Through
the~omment.
receive~,
.
the
barassment~
Commission
better
.
.
understands .the Proposed Guidelines'strenqths and weaknesses,
p~icularl.y in t.erms of h.ow the public might construe them.
comments have made the point
The
well that .ome parts of the Proposed
Gui~elines might he interpreted far differently t.han· the Commission
intended.
We are continuing- to receive, analyze and evaluate the
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comments.
One' effective response to 'these concerns might be'to
revise the langua.ge, in any final Guidelines to ,clarify
the
intended
'JIlea~in9 and to include~asy" to understand ,exam~leA of', ,bOth'
,
permissible and prohibited conduct.
,
,:~
'
: At.though deletion' of 'religion ,from"
I
.
the
Proposed 'Guidelines
.
,
,
, , eeemslike ,a simple solution,' Commissio,n statf rema.ins extremely
cautious about treating one protected basis ~ifferently than" all
,
,
I,
others..
Religious discrimination, includingbarassment,
,unfortunate reality intoday's workplace.
"
'
'
,
weaken the protections, a,fforded, by
is an
Any action that would
. ,
Title 'VII from' religious,
,
'
".
discrimination should be very closely'examined.
Oneot~he most c~itlcal ,elements ,of the,C,ommission's
is
t::J:le
mandate
education of employers and employee,saboutapplicable law in
"
, the .:araa of employMeJ:\t ciiscriminatio.ri •.,. The Proposed Guidelines
':
"
.
.'
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weie: intended to explain exi~ting law i~ the complex area. of
hUassment, and the p~incl~les set fc:)rth are neltbernew nor solely
the creation ,of th~. Commlssion.
'l'he EEOC .is' deeply ·commit.ted to
. I
promotin9' equal employment opportunlt~~s' tor all people in ·this·
Boci~tY.
properiy understoOd and applied, anti-harassment . law can
he a ~oolthat 'helps employers provide working conditions in which
people of dive+-,se beliefs and. backgrounds can 'Work together
prod1l:ctively.
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.202 456,7028;#16.
X woulcl be C}lad to· answer any questfonsyou may have.
H~w..ver .. because'
.
we are stIll In the comment period and because any
.
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action on these Proposed Guidelines, requires approval by'the full
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Commission, It would be irtappropriate' toaouit '. at: this, time'
,
'
to any'
conclusions concerning or: 8~gCJeGtedchanges to the Guid~lines.
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202.456 7028:#17
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Q &. A's on'Propo8ed Consolidated
Harassment Guidelines
.
.
..
.
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'
Why 'did the .EEOC issue the 'proposed Guidelines?
Q:
The' EEOC ·thought it . would.. be espec,ially helpful to both
employers· and· employees to .. have uniform guidance on the
.. '. 'various kinds of 'workplace' harassment prohibited by federal'
law"
. ,.
,. .. ,
.,.
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'The. :purpose 'of the prop~sedguidelirieswas 'not to' create ne~
, legal standards ,but' rather ,.to educate employers, employees,
and the gener9-1· public 'about existing . legal' standards ,in th~
area' ofha..rassment l a w . , , ' ·
...,
",'",
Q:
'Is "there sufficient EEOC guidance on harassment issui!s ',in'the,
absence ofthel?roposed Guidelines?
A: .. '" 'No.
The' Connnlssion' previously issued .guidance on' sexual •
: harassment: and na~ional or.igin ,harassment, but there are no
.guideline,S on any :ofthe. othel:'· forms of. unlawful harassment.
\
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The' Proposed Guide,lines would provide.' r;onsolidated;detailed.
Istandards·for determining whether. "conduct .in the,' workplace.
iconstitutes ,unlawful harassment· .based· . on. race I
color •. ·
.
\ religion; gender, national origin, age or disability.
t'
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,,'
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,
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Because ,of~ll the recent media· attention, the public now .
knows· a· .'lotabout sexual:' harassment.
The ·Commission
recognized, a need' for· public education.about all formsoi,
, . \U1lawful harassment I
including. . race,. ,.national.origin,
.., religion, age.,. anddisability'~
A,:.
, ..
. Q=
.
,,:
.'
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' .
,Do the . Proposed' Guidelines
, religiQn':"free .workplaces?
I'·'
.'A: ; No.
Nothing
':
.
,
~
require· tb,at'
employers '. have, .
'
in the Proposed 'Guidelin~B,requires employe'rB. to
~banpo.itive'
e~pressions.· of "religious beliefs by their
,employee's. Employees, must~derstand" however I, that they may,
.' not engage in severe or pervasive"concluetthat, d.enigrates
..others bec:o:u.8e of .
.
, 'their .religious .beliefs.
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l
.Ple~se exPlain the':' standard of lithe reasonable person in the
same or similar circumstances.'"
I
II reasonable person II
standard is ~eant .
to show the 'way in which tbe' Comm.ission will determine the
'severity or pervasiveness of alleged . harassment
The
Commission,~ill.evaluatetheconduct by. considering whether' a ."
reasonable person in the same·or similar circumstances would
find the conduct intimidating; hostile .or abusive.' .
.
.
A: : The Proposed GU,ideliries
D.
. i
,
. n applying' ,this . st,andard~ " the" Commission .considers' the
I
perspective .of indiyiduals ,with .,the "same characteristics of
the claimant, .inor-der to take into account historical,
,di~criminationagainst 'people' in ,that community.'
I
'[
For example, Africa'n-American employee would' probably be much
more' offended to find a. noose on. his/her .desk than would a
White employee,' . due. to, hist'orical discrimination, against.·
African-Americans.
. '
.:
can extremely sensitive .ipdividuals claim unlawful hara'Bsment
if they genuinely feel that certain conduct creates a host;ile
or abusive work envirorurient" even. though ha.rdlyanyone else
would react in 'the same way?
.
" Q:
A:
"
No.
The' Commission wili only, conclude that harassment has
occurred if ;;l' reasonable .person, in the same or . similar
circumstances would have found that the conduct created 'an
intimid~ting ,hostile orofffmsive work environment.
I
Don't the propcisedGuidelinesinfringe'on the constitutionally
right Qffreed9m of religion?
'
Q:
p~otected
I
j
,
A:
•
'I
No. The Propos'edGuidelines are intended to help accommodate
everyone's free exercise" of religion in the workplace.
In
protecting rel~gious freedom, .. the EEOC. is bound by' the,
Constitution and has ,a statutory' duty to protect' .and enforce
the rights of~notonly·those in the majority, but also those
who. tnaY' be in t~, minority. .
'
,
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Q: 'Do ,the proposed'Guidelines violate
. Restoration Act7' ',. . .
.
.'.. '
I
A:
,
l No.
.
.
- ",'
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,
.
"'.
t~~:::sFr:om
.
..
.
~.
' .
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.
,
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The Rel~g~ous· Freedom Res,toratl.on Act 9~nera-l-l:y-provl.des
','that the government cannot burden free exercise of religion
: unless .ithas' a compelling interest t9 do' so. The Proposed
'Guidelines.are complet~ly consistent with this new law.
,
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Whydo~sn't the' ~ommi;;eionjuat, take, religion out of the
Proposed Guidelinee?,
In
,considering. what to do about the guidelines, the' C9mmission
'has' <broad range of options."
Deleting, religion from the
, 1
guidelines, hCiwever,may ba'dangerous because it would send a'
I signal that: religious discrimination
the workplace is not',
,
,
, !. ,'as important ·as the o~her .kinds, of illegal discrimination.
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:The EEOC believes that':religiC?us discrimin~tion merits the
same kind of vigilant enforcement as discriinination based on
race', :na~ionalorigin, gender, ,age; ,or' disability.
""
"
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r
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'Is
'it •,approPriate' to' ,'apply ,the l,ijlw of sexual ,harassment to,
religious harassment?,"
,
O• !!
•
Ye's.
,The Supreme Court; has ',heidthat' the same legal
principles, apply' t9 all' forms, of ,discrimination' covered' by ,
,i ' "Title. VII ~,
''
" ,"
"
['The Supreme Court has specifically endorsed th~ principle that
:" c:r;eation ,of a 'hostile environment' ba~ed' on discriminatory
:. ',racial, re1igioua, riationa'l, origin, or sexual harassment
I .Hviola'tes Title VIl.~ "
'
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QUESTIONS AND ANSWERS ON·'
PROPOSEDCONSOLXDATED HARASSMENT GUIDELiNES
I'
Protected and Prohibited Religious·Ppractices·
.1..
..
.Can supervisors wear religious symbols such as crosses,
yarmulkes, or turbans?
.Answer : Yes •. The 'wearing of religious :syTnbolB does' not
denigrate anothe.r's religion and is not harassment.
2.
Answer: qenerally yes. Repeated requests.might,
however, amount' to harassment if the individual has .
told the e~ployer that he finds· the requests
objectionable .~
. i
3.
.
. Can a co~ork.r ask an individual to at tend a church.
service or function with' him?
\
I .
May a supervisor ask an employee to attend' a church·
service with. him?
Answer: As with a. coworker, a supervisor may. ask an
employee to attend a church service unless the employee
indicates that he is offended by such requests or
repeatedly ~efuses to go.
.
A supervisor may not, however, force an employee to.
attend a church service or take employment action
against .the- employee .for failure to attend.
.
:4.
i '
May'a supervisor keep religious posters'or artifacts in
. her office?
.Answer: Yes. In limited circumstances,' a supervisor'
might pe obliged to hold'meetings outside. of her. office
with any employee who objected on religious grounds to
meeting in her office.
.
May.' an employer sponsor a Christmas party with
religious holiday decorations?
Answer: Yes. .An employer could not, however i. require
employees to attend the party.
..
;6.
.
Mayan employer 'conduct a weekly prayer breakfast?
Answer: Yes, although employees' 'may not 'be ,forced to
attend and may not be sanctioned for failing to attend.
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May an em.ploy~l:' force employees to participate in new
age training programs?
.. Answer : . No. Employees' who ob) ectto do.ing so· may not·
,be fOl;ced, to. parti~ipatein r,eligious training
programs.
'
8.'
,May an employer encourage employees to attend'new age'
training programs or prayer ~reakfaste?
,
Answer: 'Generally, an. employer may, invite employees to
attend religious events. An employer may not , however,
take or threaten to take ,action against employees who
do not attend. An employer may also. may have to stop ,
repeatedly inviting ..particular employees who' indicq,te'
that they find such invitations unwelcome on religious.
grounds.'
.
,
"
I.
9.' Mayan employerbroadcast'aprayer over the lciudspeaker
system each morning?
Answer: Generaily yes~ However, if· an. employee
protests that the message conflicts with her/his
religious, beliefs, ,the employer may have to try to
reasonably acco~odate,him/her .
. 10.
May an
employe~
hire'achaplain?
Answer: 'An employer may hire a chaplain, for example, ,
.to conduct· the prayer, breakfasts, or other religious
observances the employer is permitted to sponsor in the
wor~l~e.
"
(
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)
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, 11. May ari employer use stationery that states that the
company is "~ist centered" or, 'place a religious
poster in a common'area?
.
,
,
'
Answer! The TOWl'lley case suggE;!sts that the answer is.
generally, yes . . However, we know of no 'case that has
addressed this issue directly. However. principles of
accommodation law ~-.not harassment law --'would seem
to suggest that if
employee explains that such
'practices conflict with,his/her religious beliefs, the
employer may be required to attempt to reasonably'
accommodate the employee.'
.
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1.2. May an, 'employer say grace before a company sponsored
',social event l'
Answer: Yes1a.lthoughany employee who 'objected on
religious' ,grounds to hearing or saying' grace would hav,e
to be excused from p~rticipatin'g in that por.tion of the,
~ompany sponsore~ event"
13. "Maya 8Up erVia or speak ,to employees about his religious"
, f~ith?
':
Answer: Generally. yea~ It would not be harassment for
·a supervisor to make positive statements to ,employees
about the existence or content of his religious faith; "
" It would be 'unlawful for a supervisor to make severely'
. or pervasively hostile, denigrating or abusive
.
statement's'about the rel~9ious faith of a'n employee". '
'however~.·
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�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Stephen Warnath - Civil Rights Series
Creator
An entity primarily responsible for making the resource
Domestic Policy Council
Stephen Warnath
Civil Rights Series
Date
A point or period of time associated with an event in the lifecycle of the resource
1993-1997
Is Part Of
A related resource in which the described resource is physically or logically included.
<a href="http://clinton.presidentiallibraries.us/items/show/36406" target="_blank">Collection Finding Aid</a>
<a href="http://catalog.archives.gov/id/641686" target="_blank">National Archives Catalog Description</a>
Description
An account of the resource
Stephen Warnath served as Senior Policy Analyst in the Domestic Policy Council. The Civil Rights Series includes material pertaining to the Civil Rights Working Group and topics such as affirmative action, English only, age discrimination, religious freedom, and voting rights. The records also include confirmation briefing materials for Department of Justice (DOJ) and Equal Employment Opportunity Commission (EEOC) nominees. The records include briefing papers, correspondence, schedules, testimony, reports, clippings, articles, legislative referral memoranda, and memos. The majority of the memos are internal between the Domestic Policy Council staff and the staff of the Equal Employment Opportunity Commission, and between the Domestic Policy Council staff and Congress.
Provenance
A statement of any changes in ownership and custody of the resource since its creation that are significant for its authenticity, integrity, and interpretation. The statement may include a description of any changes successive custodians made to the resource.
Clinton Presidential Records: White House Staff and Office Files
Publisher
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Clinton Presidential Library & Museum
Format
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Adobe Acrobat Document
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134 folders in 13 boxes
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Paper
Dublin Core
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Title
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[Harassment - Religious and Consolidated Guidelines] [1]
Creator
An entity primarily responsible for making the resource
Domestic Policy Council
Steven Warnath
Civil Rights Series
Is Part Of
A related resource in which the described resource is physically or logically included.
Box 10
<a href="http://www.clintonlibrary.gov/assets/Documents/Finding-Aids/Systematic/Warnath-DPC-Civil-Rights.pdf" target="_blank">Collection Finding Aid</a>
<a href="http://catalog.archives.gov/id/641686" target="_blank">National Archives Catalog Description</a>
Provenance
A statement of any changes in ownership and custody of the resource since its creation that are significant for its authenticity, integrity, and interpretation. The statement may include a description of any changes successive custodians made to the resource.
Clinton Presidential Records: White House Staff and Office Files
Format
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Adobe Acrobat Document
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Clinton Presidential Library & Museum
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2/8/2012
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641686-harassment-religious-consolidated-guidelines-1
641686