“The Equal Employment Opportunity Commission is expected to rescind guidance that addresses harassment based on gender identity. Should we remove mentions of gender identity from our anti-harassment policy?”
An HR professional recently asked that question to HR Dive.
Let me answer it as succinctly as possible: NO!!!
Or, if you prefer, let me rephrase question for clarity: “The EEOC says, ‘Don’t follow the law.’ I’m confused. Shouldn’t they be telling us the opposite?”
No matter what the EEOC now wants employers to believe, the law has not changed. Title VII’s prohibition on sex discrimination still includes discrimination based on transgender status. And because sex discrimination includes sexual harassment, it remains unlawful—legally, unquestionably, unequivocally—to harass an employee because they are transgender. The Supreme Court has already said this. Courts across the country have said this. The EEOC does not get to rewrite that reality by pretending otherwise.
But even if we play along with the EEOC’s fiction for a moment, the law is a floor, not a ceiling. Nothing stops employers from choosing to protect their workers because it’s the right thing to do. Your workplace policies should reflect your values, your culture, and your commitment to treating employees with respect—not the bare minimum that a politicized agency thinks it can get away with. Protecting transgender employees from harassment isn’t only lawful. It’s moral. It’s responsible. It’s who good employers are.
And frankly, the EEOC should be ashamed of itself. The agency charged with enforcing civil rights laws is now encouraging employers to ignore them. That isn’t guidance; it’s abandonment. Employers deserve clarity, not political gamesmanship.
So, no, do not remove gender identity from your anti-harassment policy. Keep it there. Keep following the actual law. And keep doing what the EEOC, apparently, won’t: protecting all employees.
Here’s what I read this week that you should read, too.
Discovery’s New Frontier: Requesting the Plaintiff’s GenAI Data and Updating Litigation Hold Policies for the Age of Generative AI Dan Schwartz’s Connecticut Employment Law Blog
