In a Jan. 22 meeting, the U.S. Equal Employment Opportunity Commission voted 2-1 to rescind its embattled harassment guidance — a lengthy and detailed document that was 10 years in the making when it was published in April 2024.
The guidance explained the protected categories covered by federal equal employment opportunity laws, delved into the nuances of establishing a hostile work environment, explored employer liability in complex situations and more.
While much of the guidance was uncontroversial, several sections raised immediate protests from some employers and minority-vote commissioners, most notably those addressing gender identity-based harassment in the workplace. The rescinding of the guidance — in part or in full — has been expected since the second Trump administration took office a year ago and then-newly appointed Acting Chair Andrea Lucas made the agency’s priorities clear.
So with EEOC throwing out the guidance, should employers get rid of it, too?
A useful tool, with caveats
Not necessarily, Andrew Scroggins, partner at Seyfarth Shaw, told HR Dive.
While the guidance “never had the force of law,” it was meant to help employers understand the specific situations that might arise in the modern workplace — and the types of claims employees might bring against them. “Whether that’s still endorsed by the EEOC or posted on its website or not, doesn’t change that these are still … potential teaching and education tools that employers and employees can refer to.”
However, employers may want to tread carefully when it comes to certain flashpoint topics, which could put them “in a bind,” Scroggins said.
The gender identity sections of the guidance are “still legitimate for an employer, because they do want to ensure that their employees feel respected and safe in the workplace,” Scroggins said. But employers need to also consider “that there is the potential for people on the other side of those interactions that are described in the guidance to also feel that they have a protected interest in certain behavior.”
For example, Scroggins said it’s “plausible” the agency could “flip the script” on how it interprets sex discrimination.
EEOC’s January rescission of the guidance was not the first action taken against the document; the gender identity sections of the document had already been vacated by a federal court judge last May, and several employers, particularly religious employers, had secured special cut-outs from that and other sections before then.
Where Title VII battles itself
Attorneys have repeatedly warned employers away from stripping gender identity-based harassment from their policies based on EEOC’s lead, noting that regardless of what the agency says, Bostock v. Clayton County still remains the law.
Court activity bears their warnings out.
Just a few days after EEOC rescinded its harassment guidance, a nonbinary former employee at an Illinois Arby’s restaurant filed a lawsuit against the establishment, alleging harassment based, in part, on gender identity. The lawsuit alleges misgendering, among other harassing behavior — a type of behavior addressed in the 2024 guidance. (While the rescinded guidance has been removed from EEOC’s website, a draft version is still accessible.)
When EEOC dropped its pending litigation based on gender identity-related interpretations of Title VII last February, many of the lawsuits were scooped up and pursued by advocacy groups or plaintiffs’ attorneys. The past year has resulted in at least one settlement.
Employers, therefore, are well-advised not to wash their hands of transgender employees’ complaints. Still, they may need to contend with the views and requests of religious or other employees in a way that creates friction and accommodation challenges, Sam Schwartz-Fenwick, partner at Seyfarth, told HR Dive.
For example, take a workplace with two sex-segregated restrooms, each with multiple stalls. Based on Bostock and previous EEOC guidance, if an employee objected on religious or sex-based grounds to using a restroom alongside a transgender person, the employer was obligated to find an accommodation for the objecting individual — not to find an alternative for the transgender worker, Schwartz-Fenwick said.
While there’s no new guidance from EEOC, commissioners, particularly Chair Lucas, have said “that they think this framework is incorrect and the focus needs to be on preventing cisgender women from having to share the restroom with transgender or nonbinary individuals,” Schwartz-Fenwick said, suggesting potential sex discrimination “test cases” may be possible. In a statement on gender identity last year, Lucas described each sex as having their own “privacy and safety interests.”
If EEOC issues guidance based on such a theory, “I think that automatically, there will be efforts to enjoin that,” Schwartz-Fenwick said. But if employers quickly move to comply, they may be challenged — particularly in states that expressly protect gender identity and expression.
While there have been some religious discrimination lawsuits related to pronoun use and other factors related to gender identity, they have “all turned on what steps the employer took to accommodate [the objectors],” Schwartz-Fenwick said.
Law firm Phelps Dunbar noted in a July 2024 analysis that the U.S. Supreme Court’s Groff v. DeJoy decision, which lifted the bar for establishing undue hardship for religious accommodations, complicates these cases further.
For now, Schwartz-Fenwick said, “It's going to be uncertain and a real risk calculus for employers for a while.” But in dealing sensitively and respectfully of all parties when there’s a conflict, employers can often find a way forward that satisfies everyone, he said.
“If everyone is willing to be flexible and creative, there are ways to often get to ‘yes’ in this situation,” he said. “And when it first seems intractable, if you dig in, there are solutions.”
