Poof! The Vanishing EEOC Harassment Guidance and Your Workplace

THE BOTTOM LINE: In a significant policy shift, the Equal Employment Opportunity Commission (EEOC) rescinded its 2024 “Enforcement Guidance on Harassment in the Workplace” by a 2-1 vote.The cryptic press release is here. While no explanation is stated for the action, the Chair stated: [R]escinding this guidance does not give employers license to engage in unlawful harassment.”  Thanks for that!

WHAT DID THE GUIDANCE DO? The guidance was a useful (and detailed) resource on how the EEOC evaluates harassment claims and gave many practical applications of harassment. The broad reaching guidance covered Title VII, the ADA and the ADEA. It explained hostile work standards and even included current issues like social media behavior and remote harassment. RIP Guidance, you were a handy reference but for another time.  (Archived here.)

WHY THE DISAPPEARANCE? Once the current administration appointed Andrea Lucas as Acting Chair last year, it was game over for guidance documents that expanded discrimination laws, including Title VII. This EEOC wants to focus on enforcing statutes as written (narrowly) and not through guidance documents (more broad interpretation).  Another issue for Lucas is the 2024 guidance conflicts with the recent federal policy and executive orders that define biological sex.

REMEMBER: THE EEOC ACTION DID NOT REPEAL ANY LAWS. EMPLOYERS MUST STILL:

• Prevent harassment based on race, color, religion, sex and national origin (Title VII); disability (ADA) and age (ADEA).
• Investigate complaints fairly
• Take prompt action to correct any findings of harassment

WHAT TO DO NOW:

• State and local laws are often broader than the federal standards. Do not lose sight of that with changes at the federal level.
• Policies may need review to ensure they do not use the 2024 guidance examples of harassment or were based on the guidance. The EEOC relies on the statutes and binding cases now–not its former guidance.
• Likewise, training may have to be evaluated to concentrate on explaining definitions of harassment under the law–not from the guidance.
• Document! It is still the best practice and shows compliance.

Questions? Need a handbook or policy review? We can help. Contact us.