No More Harassment Guidance… What Now?

Author: Emily Scace, Brightmine Senior Legal Editor

In January, the Equal Employment Opportunity Commission (EEOC) voted to rescind a major guidance document on workplace harassment.

Issued in May 2024, the guidance represented the first major update to the EEOC's approach to workplace harassment in nearly 25 years. Many of its updates - for example, discussions of harassment in remote work environments - were relatively uncontroversial, but sections exploring gender identity issues proved more divisive.

The move is not a surprise. Current EEOC Chair Andrea Lucas opposed the gender identity portions of the guidance when it was issued, and these sections were vacated by a federal district court in 2025. A January 2025 executive order declared the Trump administration's intent to recognize only two sexes, male and female, and directed federal agencies to follow suit - including by rescinding the 2024 harassment guidance.

However, the EEOC's decision to rescind the guidance in its entirety, rather than taking a more surgical approach to amend or remove only the gender identity pieces, leaves employers without a major source of insight into how the law applies in practice.

What Hasn't Changed

Harassment - whether sexual in nature or based on a legally protected characteristic like race or religion - is still a form of unlawful discrimination under Title VII of the Civil Rights Act of 1964. The rescission of the guidance does not change that fact. Employers have a legal duty to take steps to prevent and promptly correct harassment, and failure to do so can lead to costly litigation, monetary penalties, damage to workplace culture and harm to public reputation.

But in the absence of the guidance, that task might become a bit more challenging. Although guidance documents are not legally binding, they provide valuable insight into how the agency charged with enforcing a law interprets its meaning.

The rescinded guidance contained dozens of examples drawn from real cases that vividly illustrated the various forms workplace harassment can take. These scenarios - covering every type of legally proscribed harassment and a wide range of work environments and situations - helped make the dry legalese of Title VII more tangible.

However, the fundamentals have not changed. Clear policies, employee and supervisor training, an effective reporting and investigation process and a culture that does not tolerate retaliation remain the best ways for an employer to prevent harassment and mitigate risk.

Gender Identity: Questions Remain

The rescinded guidance took the position that certain gender identity-related actions - for example, intentional and repeated misgendering or requiring employees to use restrooms and follow dress codes out of sync with their gender identity - could constitute harassment in violation of Title VII.

That position stemmed from an interpretation of the 2020 Supreme Court case Bostock v. Clayton County, which held that discrimination based on sexual orientation or gender identity is a form of unlawful sex discrimination under Title VII. Since discrimination includes harassment, under this interpretation the logic of Bostock extends to prohibit gender identity harassment.

On this point, though, federal law is unsettled. Even if Bostock does prohibit harassment as well as other forms of gender identity discrimination, the question of what constitutes harassment in this context is an open one. In fact, Bostock specifically cautioned that its holding did not address issues like restrooms, dress codes and pronoun use, reserving those questions for future cases.

State and local laws further complicate the landscape. A number of states and localities address gender identity and gender expression under their own EEO laws, with explicit protections for federally unsettled issues like pronouns and restroom facilities. But pulling in the other direction, in the wake of President Trump's 2025 executive order, several states have pulled back their gender identity protections, in some cases removing it as a protected characteristic altogether.

Navigating the Complexity

So how should employers caught in the middle of these conflicting trends proceed?

First, Bostock is still the law of the land. Discrimination based on sexual orientation or gender identity violates Title VII, and harassment is a form of discrimination. An employer will not err by continuing to foster a culture that does not tolerate harassment in any form.

When it comes to pronouns, restrooms and dress codes, it is critical for employers to know and follow all applicable state and local laws. But beyond the legal obligations, treating all employees with respect and handling situations with sensitivity will be the key to navigating any challenges that arise.

Of course, that includes sensitivity to employees with different views on gender identity. And when a conflict arises between, for example, a transgender employee and an employee who feels uncomfortable sharing a restroom facility with that person, an employer should approach the situation with a goal of finding a workable solution that fosters safety and respect for everyone involved.

In this new landscape, there will be no one-size-fits-all solutions. Every organization and every situation is unique, and it will be up to HR teams - with the assistance of legal counsel - to understand and follow federal, state and local laws while managing the practical and human considerations that arise.