EEOC Scraps Previous Workplace Guidance on Harassment

The Equal Employment Opportunity Commission ("EEOC") has rescinded its 2024 Enforcement Guidance on Harassment, a comprehensive workplace resource outlining what constitutes unlawful harassment based on protected characteristics under federal anti-discrimination statutes.

The rescission followed an Executive Order issued by President Donald Trump directing federal agencies to withdraw guidance deemed inconsistent with a binary definition of sex—specifically, that men are biologically male and women are biologically female.

The now-rescinded guidance had incorporated the Supreme Court's holding in Bostock v. Clayton County, which interpreted Title VII's prohibition on discrimination "because of sex" to include discrimination based on sexual orientation and gender identity. Following that decision, the guidance stated that unlawful sex-based harassment could include conduct such as intentionally misgendering an employee or denying access to restrooms consistent with an employee's gender identity. The guidance was subsequently challenged in federal court by parties arguing that it exceeded the scope of existing statutory and judicial authority including in Bostock.

Importantly, the EEOC's guidance did not itself create binding law. Rather, it synthesized decades of agency interpretation, case law, and practical examples to assist employers in understanding compliance obligations under Title VII and related statutes.

As a matter of law, the rescission does not alter the underlying federal anti-discrimination framework established by statute or Supreme Court precedent such as Bostock. Nor does it affect state or local anti-discrimination laws, many of which adopt broader definitions of sex-based discrimination. However, the withdrawal may signal a shift in federal enforcement priorities with respect to changed understandings about sex-based harassment claims.

Main Takeaways

• Federal law still prohibits harassment based on protected characteristics under Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. This includes age, race, color, religion, sex, and national origin.
• Bostock v. Clayton County remains binding precedent for harassment. The Court held that harassment "because of sex" includes sexual orientation or being transgender. The Court did not adopt a new protected category related to sex-based harassment or a broader theory of gender identity rights. Nor did the decision address workplace use of pronouns, bathrooms, or dress codes.
• The EEOC's enforcement guidance served as a public articulation of how the agency interpreted Title VII and what types of conduct it viewed as actionable related to gender identity and expression and harassment. Withdrawing that guidance does not alter Title VII itself, but it removes a formal statement of interpretive emphasis. That absence likely signals a recalibration in how the agency will allocate resources and frame cases going forward related to harassment based on gender identity and expression and sexual orientation.

Action Items

1. Ensure Legal Compliance
• Rescission does not eliminate exposure.
• Reaffirm that Title VII protections—including harassment based on sex, sexual orientation, and gender identity under Bostock—reflect in your employment-related materials and anti-harassment policies.
• Provide manager training on workplace harassment.
• Ensure workplace channels for reporting harassment.
• Investigate workplace complaints promptly.
2. Audit Multi-Jurisdictional Compliance
• Identify states and municipalities where you operate.
• Flag locations with explicit legal protections for gender identity and expression.
• Layer stricter state/local requirements on top of federal baselines within your employment materials and anti-harassment policies and trainings.
• Stay abreast of legal developments at the local level that may take a more aggressive approach to standardizing approaches to sex-based harassment in response to the EEOC's revocation of guidance expanding on gender-based and sexual orientation-related harassment.

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Scott Prange is counsel and Lauren Nelson is an associate in the employment, benefits & immigration group in the Seattle office of DWT. For more insights, reach out to Scott, Lauren, or another member of our Employment, Benefits & Immigration team and sign up for our alerts.