Compliance Stuff

Easiest to-do list ever! As I reported recently , the U.S. Equal Employment Opportunity Commission has rescinded a detailed harassment guidance document issued during the Biden Administration.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 i...

A former substitute teacher in a Maryland school district has appealed a lower court’s decision to dismiss her First Amendment free exercise and free speech claims and its denial of her motion for preliminary injunction to continue teaching in classrooms where there are no transgender students.  The Fourth Circuit will hear oral arguments on Thursday, October 23. Kimberly Polk filed a complaint in May 2024 alleging the Montgomery County Public School System, Board of Education, and school officials violated her right to free speech, free exercise of religion, and Title VII, when it denied her request for a religious accommodation to be exempted from complying with the school district’s policy that requires staff members to address students by their identified name and pronoun, and to try to maintain the confidentiality of a student's transgender status. The district court rejected Polk’s First Amendment free exercise claim on the grounds that she failed to show the policy was not r...

Don't expect the EEOC to appeal. (NOT OUR ACTUAL JUDGE.) In April 2024, the U.S. Equal Employment Opportunity Commission issued  Enforcement Guidance on Harassment in the Workplace . The Enforcement Guidance addressed, among other things, harassment and discrimination based on gender identity. Current Acting Chair Andrea Lucas, who was a Commissioner at the time, dissented from the gender identity portions of the Enforcement Guidance, saying that “[w]omen’s sex-based rights in the workplace are under attack.” The State of Texas and the Heritage Foundation then sued the EEOC, seeking to block the gender identity portions of the Enforcement Guidance from taking effect.  Both sides filed motions for summary judgment. The plaintiffs argued, among other things, that the Enforcement Guidance went way beyond the scope of the 2020 ruling of the U.S. Supreme Court in  Bostock v. Clayton County , in which the Court ruled that terminating an employee based on sexual orientation or g...

 Employers must proceed carefully when responding to complaints around pronoun use where federal and state mandates appear to conflict. For instance, Equal Employment Opportunity Commission (EEOC) guidance states that misgendering can constitute a violation of Title VII of the Civil Rights Act when done intentionally (Sexual Orientation and Gender Identity (SOGI) Discrimination); on the other hand, Florida law prevents a public school teacher from using her personal pronouns and titles when communicating with students at school. Florida Case Florida’s “Let Kids Be Kids” law took effect on July 1, 2023. The law makes it “the policy of every [Florida] public K-12 educational institution … that a person’s sex is an immutable biological trait and that it is false to ascribe to a person a pronoun that does not correspond to such person’s sex.” § 1000.071(1), Florida Statutes. The statute also prohibits all employees or contractors of public K-12 educational institutions from using a st...