How much will it matter to the average employer?
Welcome to 2026, everybody.
This refers to the EEOC, not me.
On December 29*, the U.S. Equal Employment Opportunity Commission submitted a request to the Office of Management and Budget to rescind harassment Guidance that was issued in April 2024, during the Biden Administration. This week, a number of former EEOC Commissioners and officials with the U.S. Department of Labor submitted a letter objecting to the proposed rescission.
*In case you are as disoriented about dates as I am right now, December 29 was Monday before last.
I blogged about the 2024 Guidance here.
I am not surprised that the Trump EEOC would seek to strike or modify provisions relating to, for example, the use of pronouns and preferred names, or to clarify what employers have to do when a transgender employee seeks to use a restroom or locker room not associated with the employee’s biological sex. The EEOC in 2024 also took the position that “pregnancy-based harassment” included harassment about abortion-related decisions.
But I was surprised to learn that the current EEOC wants to scrap the 2024 Guidance in its entirety. For the most part, that Guidance contained what we have been emphasizing in harassment training for many years.
Or, is it?
No biggie?
Here are three reasons the rescission (assuming it goes through) may not be that big a deal for most employers:
First, we have a 2020 decision from the U.S. Supreme Court saying that discrimination based on sexual orientation or gender identity is a form of "sex" discrimination that violates Title VII. The EEOC can’t override the Supreme Court. So it will still violate federal law for employers to discriminate on these bases. Moreover, many states, cities, and counties have their own laws prohibiting discrimination based on sexual orientation and gender identity. Those laws will remain valid no matter what the EEOC does.
Second, as I’ve already noted, the majority of the guidance in the . . . er . . . Guidance is standard anti-harassment advice. The provisions relating to harassment based on the "traditional" categories of race, biological sex, national origin, age, disability, or religion are not controversial. If the 2024 Guidance was helpful to you in that regard, feel free to keep following it.
Third, I do not expect the “abortion-harassment” provision – or its rescission – to be that significant to employers as a practical matter. For one thing, employees generally keep that type of information very private, so it’s unlikely that their co-workers would even know about it, much less know to harass them about it. For another thing, on the rare occasions when the decision is discussed at work and a co-worker tries to dissuade the employee from having an abortion, the co-worker may be motivated by religious beliefs that also have protection.
A little more employer flexibility? Maybe.
On the other hand, here are some things that a rescission could change:
Name and pronoun policies. After the rescission, employers who want to do so should be able to continue using, and encouraging the use of, employees' preferred names and pronouns. But be prepared to consider reasonable accommodations if an employee's name or pronoun “misuse” is based on religious beliefs. And do consult with employment counsel before you take adverse action against any employee for using the wrong names or pronouns. During the Biden Administration, the EEOC would have been on your side, but that may not be the case now.
Significantly, even the Biden-era Guidance acknowledged that employees may use the wrong names or pronouns by mistake and that only “deliberate” misuse was considered unlawful harassment.
On the other hand, if you've never had a name/pronoun policy and don’t wish to adopt one, a rescission may allow you to continue the status quo with more confidence.
Private spaces. The majority opinion in the 2020 Supreme Court case expressly stated that the Court was not addressing issues like locker rooms and restrooms, or other single-sex private spaces. My guess is that, since 2020, public opinion has become more “traditional” in that regard, not less. I also suspect that it is only a matter of time before a biological female sues an employer for sexual harassment based on being required to share private spaces with a transgender coworker. But over the past few years, we’ve seen a number of real charges and lawsuits where transgender employees have alleged discrimination or harassment because they were not allowed to use the private spaces associated with their gender identities. For all of these reasons, I’d say that if you have a “private space situation,” confer with your employment counsel before you take any action one way or the other.
Old-fashioned harassment. Again, I thought the majority of the EEOC’s 2024 Guidance was very helpful, and I’m on the employer side. For the most part, it reiterated what we’ve been preaching to employers for years. I suspect that the current EEOC is all right with most of it, too. So don’t take rescission as a signal that you can stop worrying about workplace harassment. My theory is that the Trump EEOC is not rescinding the 2024 Guidance because it disagrees with the positions taken on "traditional" harassment. Rather, I suspect that the current EEOC believes a complete rescission and rewrite will be easier than making piecemeal edits to the gender identity and abortion sections of the 2024 Guidance. And any replacement guidance might include more about religious-based harassment and so-called "reverse" harassment (harassment based on membership in a "majority" group, such as a white males), both of which are big priorities at the current EEOC.
What should employers do?
Assuming the OMB approves the rescission, employers should keep on keeping on with regular anti-harassment training for employees and management, a good policy that explains what harassment is (using plain language that the average employee can understand, and in the languages that the employees read), multiple avenues for making complaints, and prompt remedial action. Coupled with anti-retaliation policies and training, of course.
And the policies should continue to prohibit harassment based on sexual orientation and gender identity, as well as the traditional protected categories.
No matter who is in the White House.
