In this installment of our Workplace Strategies Watercooler 2025 podcast series, Sherry Talton (shareholder, Houston/Seattle) and Fiona Ong (shareholder, Baltimore) discuss the U.S. Equal Employment Opportunity Commission's (EEOC) 2024 updated workplace harassment guidance. With the shift in enforcement focus under the new administration, Fiona and Sherry emphasize the importance of staying informed and adapting to the evolving legal landscape. This includes awareness of state and municipal laws that may provide specific protections against harassment, especially regarding sexual orientation and gender identity (SOGI). They offer practical tips for developing an effective anti-harassment policy, establishing a robust complaint and reporting process, and implementing sound training and investigation protocols.
Transcript
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Sherry Talton: Well, good afternoon. Welcome to our podcast replay of the EEOC's Updated Workplace Harassment Guidance, and why it still matters. With me today, I have Fiona Ong from our Baltimore office. Let's get started. What is the EEOC's Enforcement Guidance on Harassment in the Workplace? Fiona, can you let us know what we're talking about here?
Fiona Ong: Sure thing, Sherry. Thanks so much. This was released
to great fanfare in April of 2024, and it was supposed to be the
EEOC's definitive and comprehensive resource on harassment, and
it replaced a bunch of previous guidance documents on harassment.
What it says is that this enforcement guidance, like other EEOC
guidance documents, doesn't have the force in effective law and
is not meant to bind to the public in any way. But, as you and I
both know, that it actually serves as a roadmap for how the EEOC is
supposed to investigate harassment complaints and enforce Title
VII. Now, the EEOC itself was not unanimous in issuing the
guidance. What's actually in the guidance is it talks first
about the covered basis of discrimination.
It reviews a legal framework for harassment claims. It also talks
about when employers are going to be liable for harassment. Here,
the EEOC discusses what employers should and shouldn't do to
prevent and address harassment, and they provide recommendations on
harassment policies, complaint processes, training, and
investigations. The guidance also talks about systemic harassment,
meaning when harassment affects multiple employees or there's a
pattern or practice of harassment. What we got all excited about as
employment lawyers, Sherry, is the new focuses in the guidance. A
lot of these concepts had been percolating out there, but now the
EEOC pulled them all together and formally listed them out. Some of
the more interesting ones were sexual orientation and gender
identity, or SOGI, and we're going to talk a little bit more
about that in a second.
Sherry Talton: That one was definitely a big rabble rouser and got a lot of attorneys and others in the community very excited about that.
Fiona Ong: Extremely excited. I think you're going to talk a little bit more about the fallout from that in a moment. Some other kinds of harassment that it talks about is "intra-class harassment," meaning harassment based on a complainant's protected characteristic, even where the harasser is a member of the same protected class. Sherry, this was the first time I'd seen this actual term used, even though that concept had been out there for a while, but I don't know about you.
Sherry Talton: Yeah. That was new to me as well. In the past, I had always heard it as "same actor" or "same category" harassment, those types of terms.
Fiona Ong: Yeah. Another type of harassment they talk about is
"intersectional harassment," meaning harassment based on
a combination of protected characteristics like against older
women. You have age and sex in that type of harassment. Some other
expanded concepts, for example, there's no C.R.O.W.N. Act,
which is a law that protects natural hairstyles and hair textures,
but there are lots of state and local laws that have been enacted
on that topic. The EEOC just takes that and drops it into an
example of race discrimination in its guidance. The EEOC also talks
about associational discrimination. Now, the ADA specifically
prohibits discrimination based on an employee's association or
relationship with a disabled person, but the EEOC jumped on that
and expanded that to association with any protected class.
The guidance also talks about when off-duty conduct can rise to the
level of illegal harassment in the workplace. It talks about
technological advances on how harassment can be accomplished
through social media or virtually, so remote harassment. But the
big news, of course, was SOGI and also pregnancy, in fact. As you
might remember, the Supreme Court held in Bostock v. Clayton
County that an employer who fires an employee because if their
sexual orientation or transgender status violates Title VII's
prohibition on sex discrimination. The EEOC took that, and they
gave us all kinds of examples in the guidance of when conduct is
going to constitute harassment on the basis of SOGI.
Sherry Talton: I think for a lot of commentators, employers and others who have taken interest in this guidance, it's also quite confusing because this position that Ms. Lucas is taking and that these developments have been taking are inconsistent with that Bostock case that you mentioned. I think this is why it's generated so much concern.
Fiona Ong: Yeah. Well, of course, when she made that statement back in April 2024, she was in the minority, so she really...it didn't have much effect. Yeah. Different now. The other thing that really made waves were statements that the EEOC made in the section on pregnancy harassment, and they specifically said that Title VII prohibits harassment on the basis of an employee's decision to have or not have an abortion. That really got some hackles rising as well.
Sherry Talton: Yeah. Absolutely it did. One of the factors, I think, for the EEOC to add that into their guidance was obviously the passage of the related Pregnant Workers Fairness Act, which is separate from Title VII, but incorporates some of the same concepts that we see in this section on pregnancy in the EEOC's guidance.
Fiona Ong: Since the harassment guidance then came out, we've had the EEOC and some other agencies building on that, but I will say that none of that guidance touches on SOGI or pregnancy. It's been really interesting, but, and I will say that those guidance documents are—even though most of them are targeted towards the construction industry—do contain information that's generally applicable to employers. There is some value to that. But of course, we now come to President Trump's inauguration on January 20th and everything that happened after that. Sherry, you want to share with us what happened next?
Sherry Talton: Wow. There was so much. It really raises the
question, is this guidance still in force? Is it still active? As
lawyers often do, we give a noncommittal answer of, well, yes and
no. Why yes? Well, the document itself, on its face, the EEOC
guidance states that it can only be modified by a majority vote of
the EEOC's commissioners, which has not happened as of today.
The reason that so many people are saying no, it's no longer in
force. Some of those are... Number one, some of the things that
you've talked about before, Andrea Lucas now being appointed,
having taken this position that's contrary to the 2024
guidance. Also, some lawsuits have been filed to try to stop this
guidance from being enforced any longer. The main lawsuit there was
one filed by the state of Tennessee and about 18 other states, but
that court hasn't issued any substantive rulings yet, and so it
hasn't really gone anywhere.
There's just been a lot of activity at the EEOC that's
hampered the enforcement. When we say that it has to have a
majority vote of the commissioners in order to modify the
EEOC's guidance from 2024, it's important for us to
understand how the EEOC is set up. The EEOC is made up of five
commissioners, including a chair, and the President appoints the
chair and the vice chair, but no more than three commissioners can
be from the same political party. When President Trump took office,
he eliminated that majority as his very first step. He appointed
Andrea Lucas, who we talked about previously was the dissenter on
the guidance in 2024, as the acting chair of the EEOC. She took
that job the very next day, January 21st, 2025. She won't have
a majority of Republican members just yet, but there are a lot of
commentators who believe that at any point now, President Trump
will appoint at least one more Republican commissioner.
The second step President Trump took to eliminate the majority was
to terminate Commissioner Jocelyn Samuels, whose term was set to
expire in 2026, and Commissioner Charlotte Burrows, whose term was
set to expire in 2025. He also fired the general counsel of the
EEOC, who has not filed a lawsuit on those terms because it's
widely understood that President Trump had the ability to terminate
the general counsel. But Ms. Samuels has filed a case, and many
commentators believe that she has a very low chance of success
because Title VII simply doesn't give any guidance on the
requirements for removing any EEOC commissioner, which is a little
different from the NLRB, because its operating statute, the NLRA,
gives specific directions on when and how to remove an NLRB
member.
Fiona Ong: Yeah. That was a really big deal, because traditionally, though, the sitting president has never terminated commissioners before their term has been up. They just waited until the term was up and then appointed the next person, whomever they wanted to appoint at that time. For President Trump to come in and fire sitting commissioners was really a big deal and very, very unusual.
Sherry Talton: Absolutely. Some would say it's a stroke of genius. Others would say it may end up delaying things more because of the litigation, and I think only time will tell. But President Trump wasn't done acting in trying to combat this EEOC guidance. He also issued Executive Order 14168, and that order is called Defending Women from Gender Ideology, Extremism, and Restoring Biological Truth to the Federal Government.
Fiona Ong: Wow.
Sherry Talton: That executive order, yeah, obviously very loaded
language in the title, but it is descriptive of what it does. It
directs the agencies to enforce discrimination laws to protect men
and women as biologically distinct sexes without any
acknowledgement of sexual orientation or gender identity, and it
directed the agencies to remove all statements from policies,
regulations, promoting gender ideology. Well, that obviously would
apply to the EEOC as a federal agency, so this executive order is
incompatible with the 2024 harassment guidance. Consistent with the
dissent that Acting Chair Lucas put out before the April 2024
guidance got enacted, she wanted to make sure that she was acting
consistently with this Executive Order 14168.
She issued her own statement, and her statement is also called
Removing Gender Ideology and Restoring the EEOC's Role of
Protecting Women in the Workplace. For all intents and purposes,
this is the de facto marching orders for the EEOC. She took some
other actions, as well, besides just issuing her own individual
guidance. She initiated a review of the EEOC's main poster that
all employers look to called Know Your Rights. She also directed
that all charges of discrimination, harassment, and retaliation
with the EEOC that involve allegations of SOGI-related conduct be
referred to the for further review. Then, later, she dismissed
almost every lawsuit that the EEOC filed in the prior year alleging
discrimination against transgender workers. We can see that
she's carrying through her road map with those actions.
Fiona Ong: Where does the leave employers? Golly. Well, you and I recently attended some EEOC trainings on harassment because we were curious, what is the EEOC saying at this point in time on the harassment guidance? In the one that I sat in on, it was conducted by the lone remaining Democratic Commissioner Kalpana Kotagal. Poor Commissioner Kotagal, all by yourself. The training that she presented was really all about the enforcement guidance. She briefly mentioned Bostock, but then she really moved on quickly to other parts of the guidance and talked about a lot of these examples with all these new forms of harassment that I mentioned earlier. The bottom line is maybe they'll get rid of the guidance, but I think in terms of actually carrying through with their enforcement activities, a lot of that will still, I think, hold true.
Sherry Talton: Absolutely. My thought from the training that I took was similar to yours, and I suspect that if there is a modification of the 2024 guidance, it will probably be limited almost exclusively to that section on SOGI, would be my guess.
Fiona Ong: Yeah. But we certainly can expect the enforcement
focus to change because Andrea Lucas has a very different approach
to the EEOC, as we've already heard, than her predecessors.
She's actually articulated some new priorities on her bio on
the EEOC website. I'm going to quote, again, just because
it's such a very telling statement. What she says is that her
new priorities are, "rooting out unlawful DEI-motivated race
and sex discrimination, protecting American workers from
anti-American national origin discrimination, defending the
biological and binary reality of sex and related rights, including
women's rights to single sex spaces at work, protecting workers
from religious bias and harassment, including anti-Semitism, and
remedying other areas of recent under enforcement." Those are
some very strong words, again.
From there, I think we're going to see a lot of emphasis on
religious discrimination, and beyond anti-Semitism, right? I think
we're going to see emphasis on the religious rights and
accommodations that conflict with LGBTQ interests, as well as
pro-Christian protections. There's also going to be more and
more emphasis on not challenging the sincerity of an employee's
religious beliefs. We've already seen that in the cases,
especially connected with the COVID vaccine. Then the other type of
emphasis that I think we're going to see a lot more of is what
has traditionally been called reverse discrimination. Because with
all the focus on anti-DEI from President Trump and the red states,
we're going to see those cases from white or male or white male
employees that they're being subjected to harassment. That
terminology of reverse discrimination is really no longer in favor.
Right, Sherry?
Sherry Talton: Absolutely. I would say to further your point that the focus is going to shift to highlight religious discrimination, in particular, I think you're hitting the nail on the head because Commissioner Lucas just recently selected Shannon Royce as her chief of staff. Ms. Royce is the former president of the Christian Employers Alliance, so very much in line with the new focus that Chairman Lucas has set out here. We have to say she's being very clear about what the priorities are going to be, but when we do talk about that second category of, quote, "reverse discrimination," the EEOC's guidance states what I think most attorneys in this industry have said for many years, which is there's really no such thing as reverse discrimination. It's just discrimination.
Fiona Ong: Yeah. It'll be interesting. There's actually a Supreme Court case pending right now where the question is whether somebody who's bringing one of these quote, unquote, "reverse discrimination," claims has a higher bar to meet in order to prove discrimination. My gut is telling me that's not the way the Supreme Court is going to rule. They're going to find that it's the same bar as any other discrimination claim.
Sherry Talton: I think your gut is right on that. Certainly, it's in line with what the majority of the legal commentators online I'm seeing are opining on this. Then, obviously, if you go and look at the Students of Fair Admissions case by the Supreme Court, you would see that this position would be somewhat inconsistent with what they did in that case, as well.
Fiona Ong: Yeah. Well, with all of that, Sherry, why don't you talk about where this leaves employers in terms of practical tips from the guidance?
Sherry Talton: I think in some regards, it can be a little tricky, but the guidance itself does give us a little bit of help on this point. Number one, there's 192 pages in this guidance.
Fiona Ong: It's a lot.
Sherry Talton: ... a vast... Yeah. A huge chunk of that is examples of specific scenarios. The first thing that employers can take away from this is go ahead and read that guidance. Even if it gets changed at some point, those scenarios will educate employers on how to handle internal complaints and how plaintiffs' lawyers and courts may address certain situations if they arise. Also, the guidance tells us develop an effective anti-harassment policy, implement an effective complaint and reporting process for when those policies get violated, conduct effective training. That training needs to reflect the dynamics of your work site and your industry, as well as the understanding of what the law is from the actual law, which is Title VII and the Bostock case, not the EEOC's guidance. Then, whenever a problem does arise under those policies to make sure that there are effective investigations.
Fiona Ong: The guidance actually is really helpful because it gives specific recommendations on what makes an effective policy, an effective complaint process, effective training, effective investigations, and so there are a lot of really good takeaways for employers there.
Sherry Talton: Absolutely. But it's certainly in the guidance is available still on the EEOC's website.
Fiona Ong: Anything else?
Sherry Talton: Yeah. Absolutely, the number one, I think, potential landmine for employers is don't forget state law and municipal law. States and cities have a lot of statutes and regulations that directly relate to these topics, particularly to the SOGI protections of gender identity and sexual orientation. There is a hodgepodge of different state laws and municipal laws that recognize some or all of the things that the guidance...or the commentary from Chair Lucas and the executive order from President Trump go against. Remember your state municipal law, and then stay tuned for other developments from the executive orders and the EEOC guidance from the courts.
Fiona Ong: Well, this has been great, Sherry. Thanks so much for sharing this time with me.
Sherry Talton: Likewise. I really enjoy talking about this because I'll tell you, I think it's an area where it's really difficult for people to know what are they supposed to do now? What do we do with this competing guidance and these competing cases and statutes? Again, we just have to watch and wait and see how it all shakes out. It'll be interesting.
Fiona Ong: Interesting times.
Sherry Talton: Yeah. Have a good one.
Fiona Ong: Thanks so much for joining us, everyone.
Sherry Talton: Thank you.
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