Legislative lowdown: EEOC votes to rescind 2024 harassment guidance

The Equal Employment Opportunity Commission recently voted to rescind guidance on workplace harassment that addressed protections for LGBTQ+ workers.

The guidance detailed how employers can comply with Title VII of the Civil Rights Act, which prohibits discrimination based on characteristics including race, sex, religion, age, and disability.

The EEOC updated the guidance in 2024 for the first time in 25 years, taking into account a 2020 Supreme Court decision that found federal law protects workers against harassment based on sexual orientation or gender identity. As such, the guidance included examples of practices that constitute harassment under this ruling, such as misgendering workers or requiring them to use bathrooms inconsistent with their gender identity.

EEOC Chair Andrea Lucas took issue with the sections concerning gender identity while serving as a commissioner with the agency, and voted against the updated guidance.

A federal judge in Texas vacated portions of the guidance intended to protect LGBTQ+ workers last May, but the EEOC went a step further and voted to rescind the entire document on Jan. 22. The scope of the rescinded document, which was nearly 200 pages, extended well beyond gender-based harassment. It gave more than 70 examples of workplace harassment under Title VII, touching on issues such as remote work as well as discrimination based on childbirth or pregnancy.

In a statement Lucas said, “rescinding this guidance does not give employers license to engage in unlawful harassment,” noting that federal laws barring employers from engaging in discrimination, harassment, or retaliation remained in place.

Former officials with the EEOC and Department of Labor, however, expressed concern that the decision would negatively affect both workers and employers alike, HR Brew recently reported.

“It really impacts everyone who may be subjected to harassment and employers who are working to prevent and respond to harassment,” Jenny R. Yang, who served as EEOC chair under President Biden from 2021 to 2023, recently told HR Brew.

It’s worth reiterating that the EEOC doesn’t have regulatory authority to change Title VII, so the law remains the same, Yang added. This means employers must continue to comply with Title VII, including the Supreme Court interpretation regarding LGBTQ+ workers.