On Jan. 22, the Equal Employment Opportunity Commission voted 2-1 to rescind its “Enforcement Guidance on Harassment in the Workplace” (harassment guidance), a 190-page document which had been approved in 2024.
Although the harassment guidance did not have the force of law, it aimed to help employers identify and prevent activities that could constitute unlawful harassment based upon race, color, religion, sex, national origin, age, disability and genetic information.
It specifically included guidance relating to gender identity discrimination and harassment of LGBTQ+ individuals.
The withdrawal of the harassment guidance is consistent with the Trump administration’s prior executive order directing executive agencies to enforce federal laws based upon a recognition of two sexes, male and female, specifically excluding any concept of gender identity.
It signals the EEOC’s intent to investigate and litigate a much narrower scope of sex discrimination claims.
The rescission of the Harassment Guidance does not alter Title VII or any other federal anti-discrimination statute.
Employers should continue to comply with those statutes as written and as previously interpreted by courts.
Employers are also bound by applicable state laws prohibiting discrimination and harassment, and they should take careful note of how those terms are defined under each state’s law.
This also does not alter an employer’s responsibility to educate their employees on their organization’s respectful workplace policy through periodic training.
Sheila Conroy is a partner with Lake Effect Human Resources & Law in Madison, a woman-owned firm established in 2018 to provide management-side employment law and HR services.
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