Harassment Policies After the 2024 EEOC Guidance Fight

The snapshot (facts first)

• EEOC’s 2024 Enforcement Guidance on Harassment is the current, consolidated reference for Title VII/ADA/ADEA/GINA harassment analysis. The agency now flags which passages were affected by the 2025 ruling.

• May 15, 2025: A Texas federal court vacated portions of the guidance nationwide, holding the EEOC exceeded its authority on bathrooms, pronouns, and dress, and ordered specific gender-identity sections removed (including the standalone SOGI section and an example). The EEOC updated its site to reflect this.

• Important: This did not erase harassment law. Core standards (severe or pervasive; employer liability; Faragher/Ellerth defense) remain intact.

• Separately: A North Dakota court permanently enjoined EEOC enforcement of parts of the PWFA rules and pieces of the harassment guidance against Catholic Benefits Association members (a religious-employer carve-out). This is not a blanket rule for all employers.

• And remember: The Supreme Court’s Bostock (2020) still holds that firing someone for being gay or transgender violates Title VII. That’s bigger than the guidance fight and continues to inform risk.

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What to KEEP (don’t touch this foundation)

1. Definitions & thresholds. Keep your “severe or pervasive” standard, with examples (single severe incident can qualify) and totality-of-circumstances analysis.

2. Who can harass. Supervisors, coworkers, vendors/customers all covered, with different liability tests (vicarious liability vs. negligence). Keep those distinctions in your policy & training.

3. Where harassment happens. Keep explicit coverage of virtual settings (video meetings, chats) and off-duty/online conduct that spills into work. Your policy should call out email, chats, collaboration tools, and social platforms.

4. Complaint routes + prompt action. Maintain multiple reporting paths, anti-retaliation language, and a clear investigation timeline; that’s central to the Faragher/Ellerth defense.

5. All protected bases. Race, color, religion, national origin, sex (including pregnancy/childbirth/related medical conditions), age, disability, and genetic information.

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What to UPDATE (surgical edits that reduce risk)

1. Gender-identity section language.

   • Do: Prohibit sex-based harassment broadly (demeaning slurs, outing, stereotypes, hostile conduct).

   • Avoid: Treating bathroom/pronoun/dress outcomes as mandated by federal law in your harassment policy text. Instead, say you’ll handle facility access, names/pronouns, and attire “consistent with applicable law and company policy,” and route specifics to your EEO/Respectful Workplace SOP. This mirrors the ruling’s limits without green-lighting disrespect.

2. Digital conduct examples.
   Add explicit examples for Zoom comments, chat threads, emoji/reaction misuse, and social media posts that impact the workplace. (Yes, a Slack thread can create a hostile environment.)

3. Third-party harassment playbook.
   Add a vendor/customer section: who to notify, how to escalate, and when to remove a client from your employee’s environment. (Negligence standard = act promptly and reasonably.)

4. Manager scripts & timing.
   Insert a 48-hour triage window and short scripts: “Thank you for speaking up; here’s what happens next.” That speed supports your defense and trust pipeline.

5. Religious-employer note (if applicable).
   If you’re a religious employer (or serve one), add a short footnote: “Some provisions may be applied differently where required by law (e.g., RFRA or specific court orders).” (E.g., CBA ruling.)

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What to WATCH (moving targets you should track)

1. Further appeals or new EEOC action. The agency has marked vacated text online; more changes can come once quorum/leadership dynamics shift. Keep an eye on the labeled guidance page.

2. State & local law. Many jurisdictions explicitly protect sexual orientation and gender identity; your policy may need stronger commitments in those locales regardless of federal guidance shifts.

3. Client/third-party liability cases. Courts continue to fine-tune when employers are on the hook for customer misconduct—keep escalation protocols tight.

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Copy-ready policy language (paste into your handbook)

Respectful Workplace & Harassment
We prohibit harassment based on race, color, religion, sex (including pregnancy, childbirth, or related conditions), sexual orientation, national origin, age, disability, and genetic information, and any other status protected by applicable law. Harassment includes conduct in physical and virtual workspaces (email, chat, collaboration tools, video meetings) and off-duty/online conduct that impacts the workplace. Report concerns to HR or any manager; we prohibit retaliation. We investigate promptly and take corrective action. For issues involving facilities, names/pronouns, and attire, we will review requests case-by-case consistent with applicable law and company policy. (If you are a religious employer, include the RFRA note here.)

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Manager cheat-sheet (use in training)

• Hear > Acknowledge > Route > Protect. Thank the reporter, capture facts, loop in HR the same day, and prevent retaliation.

• Scope check. Harassment can come from coworkers, managers, clients, or vendors—and via chat, email, or social. Document and act.

• Don’t litigate in the moment. You’re not deciding “severe or pervasive” on the fly—your job is to escalate quickly.

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FAQ you’ll get from execs (and how to answer)

• “Do we still protect LGBTQ+ workers?”
  Yes. Title VII (per Bostock) bars adverse actions for sexual orientation or transgender status. Your anti-harassment policy should still prohibit demeaning, hostile conduct based on sex—including stereotypes. The court ruling limited what the EEOC can say in guidance, not your ability to prevent hostile conduct.

• “Can we mandate pronoun usage?”
  Avoid framing it as a federal legal mandate in policy text; focus on respectful, non-harassing communication standards and handle specific requests via SOP, aligned with applicable law.

• “Does online harassment count?”
  Yes—if it impacts the workplace, including posts from personal accounts. Train managers to escalate screenshots just like in-person incidents.

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Bottom line

• The court pared back parts of the EEOC’s guidance (gender-identity-specific mandates), but your core harassment framework stands. Update language where needed, don’t retreat from respectful culture, and keep one eye on state/local rules.

Lisa Smith, SPHR, SCP