EEOC Votes to Revoke 2024 Enforcement Guidance on Harassment in the Workplace

While this move does not change any of the underlying statutes that the EEOC enforces, it does reflect a shift in federal enforcement priorities and provide insight into how the agency would interpret those statutes when evaluating compliance. 

Background   

In 2024, the EEOC published updated final guidance that consolidated previous guidance documents to serve as a single agency resource on workplace harassment law enforced by the EEOC. Some key elements of the guidance included:

• Clarification of broad protection for LGBTQ+ workers based on the US Supreme Court’s decision in Bostock v. Clayton County, 590 US 644 (2020), which held that sexual orientation discrimination and gender identity discrimination are forms of “sex” discrimination under Title VII of the Civil Rights Act. The guidance clarified that prohibited discriminatory conduct based on an individual’s sexual orientation included outing (disclosing an individual’s sexual orientation or gender identity without their permission); misgendering (intentional use of a name or pronoun inconsistent with an individual’s gender identity); and denial of access to a bathroom consistent with the employee’s gender identity. 

• Guidance regarding how certain conduct when work is being performed “virtually” could create or contribute to a hostile work environment, such as displaying a homophobic virtual background on a video conference call or making racist comments using an employer communication platform (e.g., Slack, Teams, etc.).

• Confirmation that a single incident of harassment — if sufficiently severe — could amount to a hostile work environment.

• Confirmation that sex-based harassment encompasses harassment based on pregnancy, childbirth, or related medical conditions.

The EEOC’s vote to rescind this guidance is effective immediately, as evidenced by the EEOC already having removed it from its website. This follows a Texas federal court’s decision to vacate the portions of the guidance that sought to solidify protections for transgender employees in the workplace.[1]

Where Things Currently Stand Post-Recission

Although the rescission of this guidance reflects how the EEOC would apply Title VII in agency proceedings, ultimately, private plaintiffs are still able to pursue claims in court, where judges will ultimately determine Title VII’s scope and employers’ federal compliance obligations. As such, the EEOC’s decision to rescind the guidance does not impact the Supreme Court’s ruling in Bostock, which remains unchanged. In addition, many states and localities have laws that independently prohibit discrimination based on sexual orientation and gender identity. Those protections continue to apply regardless of EEOC actions, and state and local enforcement agencies will continue to investigate and enforce applicable laws. 

How These Developments Affect Employer’s Compliance Obligations

• Employers can anticipate shifts in federal investigative and litigation priorities at the EEOC, even as the legal framework under Title VII and state and local laws continues to govern day-to-day compliance. 

• Courts will continue to interpret Title VII independently of the EEOC’s current enforcement posture, and private plaintiffs can still pursue litigation after obtaining right-to-sue notices. 

• Multi-jurisdictional employers must continue to navigate a patchwork of state and local protections that may be more expansive than current federal enforcement trends. 

Next Steps and Recommendations

• Employers should maintain and enforce comprehensive anti-discrimination and anti-harassment policies that comply with applicable federal, state, and local laws.

• Employers should document employment decisions with clear, job-related criteria to reduce risk and promote consistent and compliant employment practices organization wide.

• Employers should continue to train managers and employees on respectful workplace standards, complaint reporting avenues, and prompt, impartial investigations.

We will continue to monitor litigation and agency activity in this area.