After EEOC rescinds anti-harassment guidance, what comes next?
In a major move, the Equal Employment Opportunity Commission recently voted to rescind its comprehensive 2024 anti-harassment guidance that was designed to help employers comply with Title VII of the Civil Rights Act of 1964.
The nearly 200-page guidance, approved during President Joe Biden’s administration, addressed harassment based on a wide range of characteristics, including race, sex, age, disability and religion. Additionally, its language on gender identity and sexual orientation, with warnings to employers against intentionally misusing a person’s pronouns, drew the ire of conservatives and led to litigation.
In May, U.S. District Judge Matthew Kacsmaryk of the Northern District of Texas ruled the EEOC had exceeded its authority and vacated the section of the enforcement guidance relating to gender identity and sexual orientation. He found the guidance requiring bathroom, dress, and pronoun accommodations “inconsistent with the text, history and tradition of Title VII and recent Supreme Court precedent”
The EEOC’s 2-1 vote on Jan. 22 cut the guidance in its entirety.
“Rescinding this guidance does not give employers license to engage in unlawful harassment,” EEOC Chair Andrea Lucas said in a statement last month.
When the guidance was first issued, Lucas wrote in dissent, “Biological sex is real, and it matters. Sex is binary (male and female) and is immutable.”
The guidance represented a multiyear effort to collect everything that was learned about ways to prevent harassment during the #MeToo movement. It also addressed many other areas, including online harassment, and put the information all in one place to make it accessible.
That’s precisely why New York City plaintiffs employment attorney Peter Rahbar finds the EEOC’s rescission of the guidance disturbing.
“There’s been all this focus on misgendering and trans employees, but that wasn’t the focus of the guidance at all,” Rahbar says. “And now it’s been completely erased from the EEOC’s website.”
Lucas’ predecessor, Charlotte Burrows, who the White House removed in January 2025, is troubled that the agency withdrew the guidance without any notice or comment from the public.
“For the EEOC to be stepping back in this very dramatic way that’s wholly unnecessary I think is really shameful,” she says.
Rahbar notes that the guidance helped employers too. “Why make it more difficult for employers to figure out what the law is?” he asks.
Robin Shea, of counsel with Constangy, agrees.
“I conduct a lot of harassment training, and it goes down a lot more easily if you say, ‘This isn’t me saying this, this is what the EEOC says,’ or ‘This is what the courts say,’” she notes. “It’s nice to have some authority to point to when you’re telling people things they may not want to hear.”
The EEOC did not respond to multiple requests seeking comment from Lucas.
What’s next?
“I’m not sure that the rescission of the guidance means a retreat on harassment enforcement generally,” says Jonathan Segal, a Duane Morris partner.
He would be surprised if the agency did not continue to pursue harassment claims based on race, sex, pregnancy, disability and religion.
And while it appears the EEOC will not pursue transgender harassment, Segal suggests that individuals are not without recourse.
In its 2020 Bostock v. Clayton County ruling, the U.S. Supreme Court held that discrimination based on a worker’s sexual orientation or gender identity is illegal under Title VII.
“Regardless of the EEOC’s position, an employee can go into federal court, and there are judges that have held that harassment based on sexual orientation or gender identity violates Title VII, reading Bostock more broadly,” Segal says.
Nonetheless, the EEOC may pursue reverse discrimination claims more aggressively. In a December post on the social platform X before the EEOC rescinded the anti-harassment guidance, Lucas asked, “Are you a white male who has experienced discrimination at work based on your race or sex? You may have a claim to recover money under federal civil rights laws.”
Segal and Shea agree that more harassment claims by straight white men are likely, with a June Supreme Court ruling in Ames v. Ohio Department of Youth Services undoubtedly helping their cause. In that case, involving a heterosexual employee who said she was discriminated against because of her sexual orientation, the court held that employees in “majority groups” do not need to meet a higher standard of proof to move forward with a lawsuit.
“Before that decision came out, a lot of federal courts said if you’re going to claim reverse discrimination, you have to present additional evidence to support your claim. So if you’re a white person claiming race discrimination, you have to prove more than a Black employee would,” Shea explains. “As a result of the Ames decision, that’s no longer the law.”
They also expect an uptick in religious harassment claims, with religious rights becoming more of a priority for the administration.
On the plaintiffs side, Rahbar is concerned the agency is favoring some groups over others.
“You could issue a press release that says you care about workers, but the actions you’re taking are not consistent with that, and they’re certainly not designed to protect every worker,” he says. “And that’s certainly unfortunate.”
Rahbar contends the EEOC has brought fewer cases in the past year and that the dip has been noticeable.
Don’t give up training
Lawyers interviewed agree it would be a mistake for employers to drop their anti-harassment training or even consider doing so. For starters, state and local laws may have anti-harassment protections that go beyond federal law or the current EEOC’s positions.
“The training is essential for legal reasons and for cultural reasons,” Segal says. “Harassment is not only unlawful, but it’s also bad business.”
Nonetheless, there is one area where employers may wish to adapt their language in light of the EEOC’s action.
“If an employer is overly aggressive in requiring employees to use their preferred pronouns, especially if they have religious objections to that, I definitely see the current EEOC pursuing that,” Shea warns.
Segal agrees and notes that employees need to choose their words carefully in training programs.
“What you don’t want to do is say it’s harassment to misgender,” he says “State courts may agree. Some federal courts may agree. But the EEOC may say that statement itself is harassment of someone based on their religious beliefs.”
Whether the EEOC will replace the rescinded guidance with something else remains to be seen.
“For most plaintiffs lawyers, there’s not a lot of trust in the EEOC right now, frankly,” Rahbar says.
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