Defensible Decisions: Leaning Into the Law After EEOC Rescinds Anti-Harassment Guidance

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Scott Kelly: Hi, everyone. This is Scott Kelly. Welcome to another episode of Defensible Decisions. I’m a shareholder in the Birmingham and Washington, D.C. offices of Ogletree Deakins, and I’m joined today by my colleague and frequent contributor here on the podcast, Nonnie Shivers. Hi, Nonnie. Thanks for joining us.

Nonnie Shivers: Hi, Scott. Great to be here.

Scott Kelly: All right. So, today, we’re going to tackle another development from the U.S. EEOC. On January 22nd, the commission voted 2 to 1 to rescind anti-harassment guidance. It was issued in 2024 under the Biden administration that included guidance related to issues of gender identity discrimination and harassment against LGBTQ+ individuals. The Republican majority, that would be Chair Lucas and Commissioner Panuccio, voted in favor to rescind that guidance with the Democratic Commissioner Kalpana Kotagal voting against it. Nonnie, what’s your big takeaway? You can’t say that this was an unexpected development in the area of employment law, right? President Trump’s Executive Order 14168 essentially directed the chair of the commission to actually take this step. It’s just that it happened, and thinking about it, almost 365 or 366 days after that executive order was signed by the president. So, no big surprise here, but what are your takeaways?

Nonnie Shivers: Yeah, zero surprise, Scott. What could have been debated or could be a surprise is whether it would be rescinded in part or in full. So, back up a step, Chair Lucas voted against this when she was commissioner. One of the district courts in Texas had issued a decision finding the EEOC had overstepped its authority and that it had unlawfully expanded the Bostick holding from the Supreme Court into areas that Bostick did not deal with.

So, it’s important to know that the guidance went far beyond LGBTQ issues. It did include guidance on pronouns, bathrooms, misgendering. It drew on 180 cases that have been decided, or more. It had 300-plus footnotes. It was a thick guidance that also got into the Pregnant Workers Fairness Act. It dealt with examples that would have been drawn from CROWN type of act, hairstyles or natural hair, which, of course, Title VII doesn’t define on its face. The definition of sex is non-existent, as we know, or race, and so on the face of the statute. So, it’s not surprising, but it could have gone the way that it appeared it might be going, which is there was grayed out guidance based on the Texas decision that had the portions removed that were directly at issue. So, it did go the way of repealing all of it.

Here’s my big takeaway, there were a lot of helpful insights in that document. It modernized harassment guidance that hadn’t been modernized for many, many, many years. And so, there are things there that perhaps were useful to employers that summarized recent cases that talked about critical concepts. Things like off-duty conduct that flows into the workplace, whether on social media or not, is actionable. Those are things that were helpful. It talked about what to do in an investigation. It talked about the standards. And so, I wouldn’t throw the baby out with a bathwater, as the saying goes. I think the key takeaway is look at it as continuing exactly what you said, which is the policy stance that Bostick only applied to hiring/firing, and Chair Lucas says promotions and admits that it’s good law. The law doesn’t change. This was only guidance, and I’d like you to address whether guidance was ever really useful at this point given recent case law developments, but employers should not view this as license to discriminate or to engage in or allow harassing or other conduct that will violate local, state, or federal law. And Bostick remains good law.

Scott Kelly: Yeah, I totally agree with you. I think I’ve said this before on podcasts, and we say this on our webinars and when we present all the time, and if you’re one of our clients that we advise and counsel, we’re always telling you, “We have to lean into the law and what that law happens to be in the particular area where your situation is occurring.” And for national employers, that can certainly vary or be different.

And I think particularly on the gender identity issues that you’re talking about, Nonnie, you and I spend a lot of time digging into those for clients, helping them understand how they should grapple with certain issues, whether it’s bathrooms or pronouns, or whatever that would come from potential issues in the workplace. Those cases are still developing. We’re seeing different courts taking those particular issues up. Sometimes, cases and decisions will be broad enough to cover those issues. Sometimes, courts skip around it. But it’s very important to figure out what’s going on in the location where the underlying activity is happening so you can make sure you’re advising on the law, just because we’ve got the Bostick decision, but it’s silent in some ways. We definitely know how the administration and how Lucas is in particular viewing Bostick, but there are other views of that and some other courts that are taking it in some other directions.
I also have not been staying on top of some of the litigation for Executive Order 14168 to be able to really give too much insight on it right now, but I would say that, of those legal challenges, and that’s basically the binary sex type executive order that was entered by President Trump last year, you’re seeing quite a number of courts that are not finding in favor of the administration, at least at the district court level, for that particular executive order. So, I would say that the law in this area is somewhat influx. Do you disagree with that, Nonnie, or would you agree?

Nonnie Shivers: I agree, Scott, and it puts employers in a tough spot in some ways. Here’s why I think you’re right, remember, there are still scads of litigation working their way through the legal pipeline on this EO and this policy, including a class action by federal employees against the administration related to bathroom usage and the panoply of rights that were addressed in this harassment guidance. The things that remain wildly influx right now, including—based on recent decisions, involve gender-affirming care.

There are going to be a lot of layers to that analysis, but where you hit the nail on the head is that each one of these, if you have a bathroom issue that arises or a concern in Texas, you’re going to have to look at the local law. Are you in Austin? Are you somewhere else? You’re going to have to look at the state law. Are you in a government building, which is impacted in Texas, or not? Are you in a school which could be impacted? And then you’re going to have to look at the state of federal law, this circuit, district courts, and you’re going to have to understand that there have been courts that have said, “Bostick does go further.” There were also these decisions before the Bostick case.

So, one of the interesting comments…that’s a heavy lift in each and every instance, but that’s what you would have to do to lean into the law. One of the interesting comments that…when people decried the revocation of this harassment guidance, which was a long time in the coming, Chair Lucas accused those individuals of fomenting fearmongering and essentially…and that was her language, not mine, and that accusation is it doesn’t…here’s where I can align on that, nothing about the revocation of the harassment guidance, which gave clarity to employers on these issues, and were helpful and aligned with much of the law that was coming out, none of the actions…the revocation, it does not change the law. What it does is it doesn’t give additional clarity on where the enforcement stances are, but I think that that’s something that we will, now that we have revocation, think employers should be prepared that there will be additional changes.

I don’t think that the EEOC has done issuing guidance, technical assistance, or as we talked about on another podcast, engaging in litigation on these priorities. So, I think we could well see, for instance, guidance, technical assistance that comes out that prioritizes religious rights and accommodations, as opposed to individuals being allowed to…as Title VII, would ostensibly permit, under the previous harassment guidance, their pronouns, their name that they have chosen according to their gender identity or their bathrooms. I think that we’ll see more indifference. So, the law, and the enforcement stance, and the guidance, the interpretation will continue to evolve.

Scott Kelly: So, do you think employers ought to be taking a look at their harassment training or their EEO training, or anything like that, and making any changes because this anti-harassment guidance has been rescinded? It sounds like, if I’m picking up what you’re putting down, so to speak, that just because this guidance has been rescinded, it doesn’t mean that it’s anybody’s ballgame out there. It sounds like a prudent employer would want to continue considering regular harassment training, whether that’s still very important and actually might be more important now more than ever, given the fact that you don’t have some of these guardrails that you might have been able to follow when that guidance existed.

Nonnie Shivers: So, I 100% agree with you, Scott. This is not a free-for-all. This is also not what we see in D.C. we can emulate in the workplace. So, the concepts of equal employment opportunity, professionalism, those are still very much within our wheelhouse. One thing that employers do have to be cognizant of are conflicting obligations under local and state law and making sure that we’re still a compliant organization. There’s many of the cases that were cited in the guidance that’s now been rescinded, provided helpful information to employers on what examples, what hypotheticals to include in their training. They were modernized. These are cases. These are court decisions. And so, taking them out, removing them nearly because of the rescission of the guidance, that would be ill-advised and continuing to modernize your training to reflect the realities of the workforce.

No matter what the executive order says, which does not change law, it cannot and does not do so, it doesn’t change the composition of our workforce. Nothing about rescission of this guidance means that gender identity is not a protected characteristic. The Supreme Court has said it is so. So, I just encourage people to think really broadly how to meet their EEO obligations and ensure that there’s the culture that they need to maintain to be a productive workforce focused on protection of everyone’s rights.

Scott Kelly: Yeah, absolutely. Lots to think about as we continue to see things evolving and changing. I think we’re going to see a lot more rapid changes in 2026. What’s on your list of things that you would expect to see from the EEOC, Nonnie? I have some ideas, but I’m curious on your thoughts.

Nonnie Shivers: Yeah, I like that question a lot. And frankly, I think this is what employers really hunger for is we don’t want to be on the defensive. So, I think we’re going to see an uptick in litigation. I just think it’s unavoidable. I think we’re going to see an uptick, at least along the EEOC’s elucidated and the administration’s elucidated priorities, but here’s what I think we’re going to see issued, I think we’re going to seek guidance on religious rights that mimics the federal sector religious guidance that was issued that prioritized religious rights in the workplace. I don’t think it’s far away either. So, I think we’re going to see that.

I think we’re going to see additional technical assistance on topics like national origin, further elucidating those concepts, which is what is anti-American bias. And I think we’re going to see these very clearly along the lines of what the elucidated priorities are. And then I think we’re going to see…if you’re not subscribed to EEOC press releases, not following the general counsel or commissioners on LinkedIn or other social media, I think you’re going to see more of these kinds of videos. And I also think it’s useful for employers to track the former EEOC commissioners who are responding in turn, in real time, to each of these developments. And it will give you an idea of where things may pivot in the future, because that pendulum will swing, Scott.

Scott Kelly: Yeah, I agree. And I think an important thing about some of the former government officials and some of the pronouncement that they’re making, or at least the guidance that they’re issuing or responding to some of the actions of this administration, you certainly can get lost in the…these are people that are diametrically opposed from a policy position standpoint, right? But some of these former EEOC and other government officials are in the active practice of law. Some of them are in consultative roles. Some of them, without naming names, are actually filing some lawsuits that still are pursuing disparate impact theories of litigation under Title VII.
And I just think that your point is so well-taken and should be emphasized a bit that try to get outside of the partisan thing that you might want to be drawn to here, that you’ve got former EEOC commissioners or former officials from the government. Let’s just call it a political issue where you have former Democratic folks and you’ve got current Republican folks that aren’t going to see, policy-wise, eye to eye on things. Don’t get lost in that noise because I think that, unfortunately, employers are going to really need to be able to navigate both of the positions.
And one of the things that I think I have found most frustrating in the last… And there have been a lot of them, but in the last year or so, has been the fact that it’s really hard to give our clients clarity as to what the rules of the road are because there’s so much disruption out there. But that’s why it’s important to stay tuned into what’s going on, both from the people that are currently in these roles, and I suppose the folks that previously have been in these roles and just trying to get as much information as you can. So, your organization can decide, looking at its risk tolerance, what’s right for it because there’s a lot of, I would say, lack of clarity on what exactly you need to be doing, especially if you’re trying to run a multi-state or a national organization, or even a global organization. There’s lots of challenges that I think are just going to get a bit larger in the months ahead.

Nonnie Shivers: Unfortunately, you’re absolutely right, but the law remains the law. Leaning into it gets more challenging and expensive. There has to be that analysis to answer some of these questions. I’ve always told you, and I’ll tell everyone listening, I’m not a lawyer that says, “It depends,” but there aren’t answers to some of these given the quicksand that we find ourselves in.

Scott Kelly: Absolutely. Well, hopefully, we haven’t depressed our audience too much. I think there are actionable ways that you can help preserve your organization and make sure that you’re mitigating risk in doing that. We’ve talked about some best practices on this podcast, but we hope you’ll come back and listen again to Defensible Decisions and other podcasts at Ogletree. Nonnie, thanks for joining today. And for the listeners out there, thanks for joining us, and we hope to have you listen to us soon.

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