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Update: The EEOC voted 2-1 along party lines to rescind the 2024 Enforcement Guidance on Harassment in the Workplace in its entirety. The EEOC’s objections to the guidance primarily related to the sections of the guidance regarding harassment based on sexual orientation and gender identity, including with respect to preferred pronouns and bathroom access. However, the EEOC voted to completely rescind, instead of revise, the guidance.

Did anything stay the same?

Yes, federal law and Supreme Court precedent from Bostock stayed the same. Nothing about the guidance impacted federal law and neither does the rescission. Moreover, the EEOC will continue to focus on workplace harassment and so should employers. In fact, EEOC Chair Andrea Lucas reiterated that anti-harassment is still a focus area for the EEOC stating: “Rescinding this guidance does not give employers license to engage in unlawful harassment… The EEOC is committed to evenhanded enforcement of these [harassment] laws.”

So, what should employers do to protect their businesses?

The same things we suggested last week, which are:

  • Review your anti-harassment and complaint policies and procedures to make sure they are clear and easily understood.
    • Make sure these policies also address remote and hybrid employees if applicable to your company.
    • Consider implementing a company device or online communication policy that incorporates a prohibition on harassment if you do not already have one.
  • Remind your employees and supervisors of your anti-harassment policies.
  • Provide employees with a clear complaint procedure and contact for reporting alleged harassment.
  • Take all allegations seriously and investigate promptly after receiving allegations of harassment (or other complaints of discrimination or retaliation).
  • Avoid bias or the appearance of bias in an investigation.
  • Take appropriate corrective action if needed.

While the EEOC’s rescission of the guidance is evidence of a shift in the EEOC’s enforcement under the Trump administration, particularly as it relates to an effort to define biological sex as immutable and binary, this move does not signal a free pass for employment decisions involving harassment allegations.

Bonus word to the wise

Employers who run into an issue of harassment involving biological sex, gender identity, or LGBTQ issues:  Call your favorite employment lawyer. This area is tricky under the current state of the law, and your approach could place your company at risk of legal action.