The U.S. Equal Employment Opportunity Commission (EEOC) has voted 2-to-1 to rescind its 2024 harassment guidance document. This action occurred without the standard notice and comment period.
Background on the Rescinded Guidance
The nearly 200-page document, approved during the Biden administration in 2024, detailed how harassment based on protected characteristics like race, sex, religion, age, and disability is defined under federal law. It provided over 70 examples for employers.
A section addressing gender identity and sexual orientation was a point of contention for some. Citing the 2020 Supreme Court decision Bostock vs. Clayton County, the guidance included examples of prohibited conduct, such as:
- Repeated and intentional use of a name or pronoun an individual no longer uses.
- Denial of access to a bathroom consistent with an individual's gender identity.
Reasons for Rescission
EEOC Chair Andrea Lucas, who voted against the original guidance in 2024, holds the view that the Bostock decision applies only to hiring and firing decisions, not to other workplace conditions. She stated that "Biological sex is real, and it matters. Sex is binary (male and female) and is immutable. It is not harassment to acknowledge these truths — or to use language like pronouns that flow from these realities, even repeatedly."
Last May, a federal court in Texas vacated the section of the 2024 guidance related to sexual orientation and gender identity, finding the EEOC had exceeded its authority. Following this, Chair Lucas sent a final rule to rescind the entire document, which received approval in early 2024. Commissioner Brittany Panuccio joined Lucas in the vote.
Dissenting View
Commissioner Kalpana Kotagal cast the dissenting vote, stating, "There's no reason to rescind the harassment guidance in its entirety. Instead of adopting a thoughtful and surgical approach to excise the sections the majority disagrees with or suggest an alternative, the commission is throwing out the baby with the bathwater. Worse, it is doing so without public input." Kotagal has been the EEOC's sole Democrat following recent personnel changes.
Implications for Employers
Federal laws protecting workers from discrimination remain unchanged. However, the EEOC will temporarily not provide comprehensive guidance on how these laws apply to real-world situations. Employers, especially smaller entities without dedicated legal departments, rely on EEOC guidance for compliance and training.
Craig Leen, an employment law partner, noted that employers seek guidance as a "safe harbor" to ensure compliance. He expressed hope that the EEOC would reissue guidance on broadly agreed-upon topics, such as harassment based on sex, race, age, and religion, which he estimates constitute 95% of the content.
Former Democratic commission chair Charlotte Burrows voiced concern that the lack of EEOC guidance creates uncertainty for employers regarding the commission's position on complex issues. She highlighted that the rescinded 2024 guidance incorporated approximately 38,000 public comments and insights from movements like #MeToo.