On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) adopted an omnibus document entitled “Enforcement Guidance on Harassment in the Workplace.” It was a combination of Commission guidance on harassment spanning from 1987 to present, communicating the EEOC’s position on the various legal issues that employers and employees faced in relation to harassment on the basis of various protected classes. Originally, the guidance followed a lawsuit called Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), where the Supreme Court found that workplace harassment could constitute unlawful discrimination if it arose on an unlawful basis, such as race, sex, disability, or other statutorily protected characteristics. In other words, workplace harassment is discrimination if it is predicated on a protected class, and the employer therefore has a vested interest in preventing harassment in the workplace.
The 2024 version attempted to collect and clarify the past 40 years of law into one place, laying out the federal government’s position on workplace harassment, providing examples and guidance scenarios to assist employers and employees in understanding the fraught topic of workplace harassment. A 2025 lawsuit, Texas, et al. v. EEOC, 2:24-CV-173 (N.D. Tex. May 15, 2025), saw a Texas court vacating portions of the EEOC guidance related to sexual orientation and gender identity. The court vacated on the grounds that the guidance established mandatory standards through explaining safe harbors [e.g., providing accommodations to transgender employees, utilizing preferred pronouns was described as a means of avoiding a workplace harassment lawsuit], and thereby created liability for failure to comply. The Texas court noted that the EEOC based the guidance on gender identity and sexual orientation through interpretation of Bostock v. Clayton Cnty., 590 U.S. 644 (2020), but misread the nonbinding dicta of the case and applied it by redefining what it means for harassment to be on a basis of sex. Holding that the guidance exceeded the EEOC’s rulemaking authority without official publication as a “rule,” the court vacated all chunks of the EEOC guidance related to gender identity and sexual orientation. In an unprecedented move for the normally independent commission, the Trump Administration removed Biden-era appointees on the EEOC in January of 2025, and the acting chair of the EEOC has expressed no interest in appealing the Texas lawsuit. For employers, employees and independent contractors, this means that federal law related to workplace harassment no longer has any guidance related to harassment on the basis of gender identity or sexual orientation. The remainder of the guidance is still informative and useful if a workplace is looking to adopt a policy on workplace harassment [it is wise for an office to have a policy on this]. As the policy notes, an employer is able to raise an affirmative defense to automatic liability for hostile work environments but only if the employer has a procedure for avoiding or minimizing harm from harassment that the employer enforces.
Separate from the maelstrom of law and administrative politics at the federal level, employers can rely on state law. The federal standards on discrimination set the floor, the bare minimum for what discrimination laws must say. States are permitted to adopt more specific or more stringent rules as they wish. Oregon has ORS 659A, the chapter of law on Unlawful Discrimination in employment, public accommodations, and real property transactions. Under Oregon law, it is unlawful to discriminate against any Oregonian on the basis of their sexual orientation or gender identity. For all intents and purposes, this means an Oregon employer could simply use the 2024 edition of the Enforcement Guidance [e.g., https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace#_Toc164808005] and ignore the federal law uncertainty when using the guidance as a foundation from which to craft a workplace harassment prevention policy that is compliant with Oregon law.