On January 22, 2026, the United States Equal Employment Opportunity Commission (“EEOC”) voted to rescind its 2024 Enforcement Guidance on Harassment in the Workplace (“Harassment Guidance”).
The EEOC is a federal agency that investigates complaints of workplace discrimination, harassment, and retaliation in violation of federal law, and it has the authority to bring court actions against employers to enforce such federal laws. The EEOC is run by a five-member Commission (although currently there are only three members, with two vacancies). Members of the Commission are appointed by the President and approved by the Senate. The Commission periodically issues guidance, such as the Harassment Guidance, explaining its interpretation of various federal antidiscrimination and antiharassment laws enforced by the EEOC. However, EEOC guidance, unlike federal statutory and case law, is not binding for private sector employers.
In April of 2024, the EEOC issued its comprehensive Harassment Guidance concerning prohibited harassment based on race, color, religion, sex, gender, national origin, age, and disability status. Regarding sex and gender, the Harassment Guidance addressed, among other things, workplace protections for “pregnancy, childbirth, or related medical conditions,” and reflected the Supreme Court’s 2020 decision in Bostock v. Clayton County, Georgia, which held that Title VII of the Civil Rights Act’s prohibition on sex-based discrimination extends to discrimination based on sexual orientation and gender identity.
During an open meeting of the EEOC Commission on January 22, 2026, the three Commission members engaged in a spirited debate concerning whether to rescind the Harassment Guidance and ultimately voted two-to-one in favor of recission. The majority voting in favor primarily argued that recission was appropriate because the Harassment Guidance amounted to “substantive rulemaking” and thus exceeded the EEOC’s authority under Title VII of the Civil Rights Act, which only grants the EEOC procedural rulemaking authority. Further, portions of the Harassment Guidance related to gender-based harassment had been “successfully challenged in multiple lawsuits,” specifically that gender-based harassment could include “failure to accommodate a transgender employee’s bathroom, pronoun, and dress preference.” Finally, the majority argued that President Trump directed the EEOC to rescind the Harassment Guidance in an executive order. The one Commission member voting against rescission argued, among other things, that rescinding the entire Harassment Guidance, rather than the portions that had been struck down in court, amounted to “throwing out the baby with the bathwater.” She further criticized the process by which the Commission voted to rescind the Harassment Guidance. Before the Harassment Guidance was issued, the EEOC held a notice and comment period, during which nearly 38,000 comments from the public were submitted. The Commissioner voting against rescission was highly critical that no such notice and comment period was held prior to recission.
Notably, the Commission vote split along political lines, with the two members voting in favor having been appointed by President Trump, and the one member voting against having been appointed by President Biden.
The important thing for employers to know is that the EEOC’s decision to rescind the Harassment Guidance does not change any existing federal, state, or local anti-discrimination or anti-harassment laws. The recission does not change the holding in Bostock, and prohibited sex-based discrimination still includes discrimination based on sexual orientation and gender identity. As noted above, EEOC guidelines explain the Commission’s interpretation of federal anti-discrimination and anti-harassment laws, but they are not binding on private sector employers. Further, the EEOC does not have the authority to change federal, state, or local law. Commission Chair Adrea Lucas, who voted in favor of recission, stated during the open meeting that the Harassment Guidance “cannot create any harassment protections for employees that they do not already enjoy under federal case law,” and “employees will not lose any rights or remedies if the [Harassment Guidance] is rescinded.” Further, the Commissioners all emphasized that the EEOC will continue to investigate complaints of harassment notwithstanding its recission of the Harassment Guidance. Regardless, any anti-harassment policies that were deemed by legal counsel to comply with the law before the Harassment Guidance was rescinded likely do not need to be reevaluated due to the recission.
