The Equal Employment Opportunity Commission (EEOC) has rescinded the “Enforcement Guidance on Harassment in the Workplace.” A House of Representatives subcommittee held a hearing on adopting artificial intelligence at work. The Federal Trade Commission (FTC) conducted a workshop on the use of noncompete agreements by employers.  The EEOC voted to return the power to start or intervene in litigation to the commissioners.

EEOC Rescinds Harassment Guidance – The Equal Employment Opportunity Commission (EEOC) voted 2 – 1 to rescind its “Enforcement Guidance on Harassment in the Workplace,” which was approved in 2024. EEOC Chair Andrea Lucas cautioned that “Rescinding this guidance does not give employers license to engage in unlawful harassment.” The action by the EEOC to revoke the guidance is consistent with Executive Order 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” which directed the EEOC to rescind the guidance.

In the case of Texas v. EEOC, the U.S. District Court for the Northern District of Texas invalidated a portion of the harassment guidance concerning gender identity. The EEOC guidance defined the term “sex” under Title VII of the Civil Rights Act of 1964 to encompass both sexual orientation and gender identity. The EEOC guidance stated that “denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity” could constitute sexual harassment.  The District Court found that the EEOC guidance “contravenes Title VII’s plain text by expanding the scope of sex beyond the biological binary.”

A group of former EEOC leaders issued a statement criticizing the rescission of the harassment guidance.  The statement declared that this action “is part of this Administration’s broader effort to weaken enforcement of federal employment anti-discrimination laws and, simultaneously, to diminish public understanding that federal law firmly prohibits harassment based on sexual orientation and gender identity.” The statement noted that rescinding the guidance does not modify Title VII of the Civil Rights Act of 1964 and employers have the same responsibilities while employees and applicants have the same rights.

Hearing Held on Adopting AI at Work – The House Subcommittee on Health, Employment, Labor and Pensions of the House Committee on Education and the Workforce held a hearing on “Building an AI-Ready America: Adopting AI at Work.” According to subcommittee chairman Representative Rick Allen (R-GA), the hearing would explore how “artificial intelligence (AI) is reshaping American workplaces and what that means for employers and employees.” Representative Mark DeSaulnier (D-CA), ranking Democrat on the subcommittee stated that “AI should be used in the workplace to help workers do their jobs with ease and efficiency, not encroach on their privacy and pad the company’s bottom line at the workers’ expense.” He stressed the need for balance so that everyone benefits from AI.

Bradford Kelley, Shareholder, Littler Mendelson, P.C. testified that the United States has a variety of workplace related laws and he cautioned against a “rush to enact AI-specific workplace regulations.” He recommended that Congress “prioritize clarifying how current statutes apply to AI, promoting voluntary compliance and best practice guidance.” He urged Congress to enact a national standard that would preempt state and local regulation of AI. He stated that “Given the complexity and nationwide scope of AI deployment, Congress is uniquely positioned to balance the competing interests at stake through a thoughtful and comprehensive legislative process.”

Tanya Goldman, Fellow, Workshop noted that where the use of AI in the workplace has appropriate safeguards, it can “increase efficiency and productivity and even help make work safer, for instance, by monitoring potentially dangerous conditions and flagging hazards.” She expressed concern that AI also can threaten the safety of workers as well as the ability to organize and bargain over protections. She urged Congress to pass legislation that protects workers’ rights and provides workers with a share of any productivity gains. She declared that it is important “to ensure that AI does not increase inequality or create prejudicial outcomes for workers’ job opportunities, rights, and protections.” She outlined the harm that workers are already experiencing as a result of AI tools being used in such areas as hiring, compensation, automated management systems, and surveillance.

FTC Holds Workshop on Noncompete Agreements – The Federal Trade Commission (FTC) held a workshop on noncompete agreements that was titled “Moving Forward: Protecting Workers from Anticompetitive Noncompete Agreements.” The FTC during the Biden Administration enacted a rule that would have banned most noncompete agreements. The rule was blocked by the courts and never took effect. Andrew Ferguson, chairman of the FTC believes that the FTC does not have statutory authority to ban noncompete agreements. As a result, he favors a case-by-case approach and noted the FTC has filed two complaints against firms whose noncompete agreements the FTC believes are “anti-competitive and harmed American workers.” He stated that “Unlawful non-compete agreements are anti-competitive, not just for workers trying to sell their labor, but for rival companies and for consumers as well.” He declared the FTC would focus enforcement actions against those industries that have the most non-compete agreements.

The workshop included statements from several healthcare professionals who discussed the impact of noncompete agreements on their ability to practice in their respective fields. Mark Woodward, Assistant Director of the FTC’s Anticompetitive Practices Division, noted that healthcare has been a focus of the FTC. He stated that the use of noncompete agreements in the healthcare industry “may have adverse effects on labor market competition and on patient care.”

EEOC Commissioners Vote to Modify Litigation Process – The Equal Employment Opportunity Commission (EEOC) voted 2 – 1 to return the power to commence or intervene in litigation to the commissioners. Under the resolution, the EEOC General Counsel would retain delegated litigation authority to begin litigation in limited circumstances such as to enforce settlements, consent decrees, subpoenas, seek temporary restraining orders and when there is the lack of an EEOC quorum. According to EEOC Chair Andrea Lucas, “Congress expressly entrusted the authority to commence or intervene in litigation to the members of the Commission in Title VII of the Civil Rights Act of 1964.” She noted that in 1995, the Commission delegated much of that authority to the General Counsel. She believes that this resolution restores to the Commission “the critical responsibility to authorize litigation.”

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.