Employment & Labor Insider

As I reported recently, the U.S. Equal Employment Opportunity Commission has rescinded a detailed harassment guidance document issued during the Biden Administration. As a result, many employers are probably wondering what exactly they can and cannot do, as well as what they should and shouldn’t do. I speculated about this in early January.

Now that the rescission is official, here is my 2026 harassment to-do list for employers. I hope it helps.

No. 1: If you have a good harassment policy, don’t change a thing. Well, maybe one or two things, discussed below. But don't believe the hype. The EEOC's action does not mean that we're in a harassment free-for-all. Don't delete the parts of your policy that prohibit discrimination or harassment based on sexual orientation and gender identity. You should keep those.

The U.S. Supreme Court ruled in 2020 that discrimination (and, presumably, harassment) based on sexual orientation or gender identity is a form of “sex” discrimination prohibited by Title VII. The EEOC cannot override the Supreme Court and, as far as I can tell, is not trying to. You may also be in a state, city, or county that prohibits harassment based on these categories, and you would want to remain in compliance with those laws as well as federal law.

Finally, if you're like most employers, you want all employees to treat each other with respect. It's a good thing if people don't dread coming to work. Prohibiting workplace harassment is one way to help create a positive work environment.

No. 2: If you’re doing annual harassment training for supervisors/managers and employees, keep it up! Regular training is one of the best ways to prevent workplace harassment from ever taking place. And even if harassment occurs, the fact that you conducted the training will be a major point in your favor, and possibly even a legal defense to liability for your company (depending on the specifics of the harassment allegation).

No. 3: If you want to encourage employees to use each other’s preferred names and pronouns, feel free to continue. The EEOC action has not “outlawed” this. My only caution here is to be receptive to requests for reasonable accommodation from employees who may have religious beliefs related to name and pronoun use. For a few years now, I’ve been adding a provision to pronoun policies inviting employees with religious concerns to contact Human Resources about possible reasonable accommodations. I also cover that when I conduct training. If you don’t already have a provision like that in your policy and training, you should add it, and you'll be all set.

Also, if you prefer to stay out of the name/pronoun issue as a matter of formal company policy, you should be able to continue that.

No. 4: If your employees have private, single-sex, shared spaces (such as restrooms without stalls and locker rooms), and if you anticipate an issue with use of those spaces by a transgender employee, contact your employment counsel before you do anything you’ll regret. I think this would apply to a relatively small number of employers, but if it does apply, be very careful. This is a “damned if you do, damned if you don’t” situation. If you bar the transgender employee from using those spaces, you are likely to get a gender identity discrimination charge. But if you don’t, you could get sexual harassment charges from “cis” employees who use that space and feel that their privacy is being invaded. We’ve already seen this with school locker rooms (under Title IX, which applies to schools), and I suspect it will eventually make its way into workplaces as well. The Supreme Court majority in the 2020 decision linked in No. 1 above made it clear that it was not addressing the rights of transgender employees to use single-sex shared private spaces. In other words, we don't have definitive guidance about this issue at this time.

No. 5: If you aren’t already, become more alert to the possibility of “reverse” discrimination or harassment. For years, I’ve included in my harassment training that it’s illegal to discriminate against or harass people in the "majority" group as well as people in "minority" groups. It’s all bad, and it’s all illegal. If you don’t believe me, check out this Supreme Court decision from last summer, in which the Court held that a plaintiff alleging reverse discrimination does not have a heavier burden of proof than a plaintiff alleging "old-fashioned" discrimination.

No. 6: Thou shalt not refuse to accommodate religion. The current EEOC is much more receptive to religious rights than was its predecessor. As noted above, if you have an employee with religious objections to complying with a name/pronoun policy, do attempt to accommodate that employee's beliefs. In this developing area of the law, it might be prudent to consult in advance with your employment counsel before making any final decisions.

I had reported previously on a Christian teacher in Indiana who was forced to resign in 2018 over his refusal to use the preferred name and pronouns of a transgender student. He sued and lost, won on appeal, lost again in the lower court, appealed again, won again on appeal, and then the appeals court refused to reconsider its decision in his favor. And, what do you know? About two weeks ago, the school district settled with him.

The times, they are a’changin’.

Apart from the tension between religious and transgender rights, employers should be receptive to all requests for religious accommodation. Before 2023, employers did not have to accommodate religion (under federal law) if doing so would create more than a “de minimis” hardship for the employer. This was a much easier standard for employers than, say, the accommodation standard that applies to disability accommodations under the Americans with Disabilities Act. But in 2023, the Supreme Court ruled that employers have to do more than the “bare minimum” to accommodate religious beliefs. Maybe not quite as much as required under the ADA, but definitely more than before.

No. 7: If your harassment policy and practices are lousy, get them into shape. The above six recommendations are for employers who try to keep their policies up to date, conduct regular harassment training, avoid any kind of discrimination, and are at least open to religious accommodation requests. For employers who don't, then "carrying on" is not the answer. The current EEOC takes a different view than its predecessor on some issues, but harassment is still against the law, and there is no reason to believe that the current EEOC -- or the plaintiffs' bar -- will not pursue claims against employers who fail to take appropriate preventive and remedial steps. 

Not that No. 7 applies to you, Dear Readers.