When most people hear the phrase “sex-based harassment,” they think of unwanted sexual advances in the workplace, assault, and inappropriate comments that are sexual in nature. This definition is derived from guidance released by the Equal Employment Opportunities Commission (EEOC) in 1980 and provides legal basis to prevent and rightly prosecute such harassment in the workplace. The EEOC’s definition remained unchanged for 43 years—until this October when the agency proposed new enforcement guidance that raises concerns regarding religious liberty and what the legal protections are for Christians in the workplace to prevent harassment due to religious and moral convictions.
In this enforcement guidance, the EEOC expands the definition of “sex-based harassment” to include two new sub-categories:
- A redefinition of pregnancy, childbirth, or related medical conditions, expanded to include abortion and family planning decisions, such as contraceptive usage; and,
- Sexual orientation and gender identity.
Why is this important?
The EEOC is responsible for enforcing Title VII of the Civil Rights Act which prohibits discrimination on the basis of race, color, religion, sex, and national origin. Though guidance from the EEOC is not legally binding, this updated guidance is important because it serves as a reference for how the EEOC is claiming the law should be interpreted by the courts, EEOC investigators, and employers.
Underpinning this new guidance is a common argument: that religion belongs in the privacy of one’s home, not the workplace. For the Southern Baptist, such a statement cannot stand; belief in a holy and just God demands that our lives be reordered in response. Our deeply held religious convictions cannot be relegated to certain corners of our lives, and religious liberty protects not only our freedom to hold those beliefs but also the freedom to express them in the public square.
Requiring employees to regularly bend their knee to the cultural demands of this age infringes upon the EEOC’s own guidance to protect free expression of religion in the workplace.
Why does this updated guidance raise religious liberty concerns?
First, in the newly-proposed guidance, the EEOC specifically refers to “abortion” as a “pregnancy, childbirth, or related medical condition.” This may consider pro-life speech and other discussions about an individual’s decision to choose between life or abortion to be workplace harassment.
Second, by including sexual orientation and gender identity as a protected characteristic, the EEOC effectively prohibits sex-segregated spaces such as bathrooms and locker rooms. This raises both moral and safety concerns, as women will be disproportionately affected by negative repercussions as a result of this policy.
Third, “religion” is already considered a protected characteristic under existing law. The EEOC has not released any guidance for how the agency plans to navigate potential conflicts between religious belief and other protected characteristics. What happens when an individual is unable to use preferred pronouns due to their moral convictions, or is uncomfortable with a biological male using the women’s restroom?
What has the ERLC done?
On Nov. 1, the ERLC submitted comments in response to this proposed guidance. The ERLC expressed concern with the expanded guidance, citing the theological basis for Southern Baptist beliefs and issuing a call to retain religious liberty in the workplace.
The ERLC made three primary arguments in the comments:
- Every human being has inherent dignity, and every life should be protected.
- Any attempt to engage in or support “gender transitions” rejects God’s design for human flourishing and harms our neighbor.
- The EEOC’s proposed enforcement guidance infringes upon religious freedom and does not provide sufficient clarity on how the agency intends to navigate conflict between the existing legally protected characteristics and the newly expanded definitions provided.
It is impossible to claim to protect both free expression of religion and simultaneously require employees to support “gender transitions” and abortion. It’s likely the proposed enforcement guidance will lead to violations of the consciences of religious individuals by requiring them to affirm factually untrue and deceptive beliefs to the detriment of their conscience and personal safety.
We trust the Lord remains in control in the midst of these types of discouraging regulatory actions. The ERLC is engaged in these processes by working with Congress, responding to rule-making, and seeking other opportunities to express the unique voice of Southern Baptists on these issues. We are prayerfully seeking to glorify the Lord as we diligently work to retain and expand the religious liberties the Southern Baptist Convention has long upheld. We invite Southern Baptists to join us in praying against harmful actions such as this one and for the hope of the gospel to permeate the public square.