EEOC Rescinds Enforcement Guidance on Harassment in the Workplace

Takeaways

• The EEOC voted 2-1 to rescind its 2024 harassment guidance over concerns that the guidance exceeded Title VII authority and to comply with President Trump’s executive order regarding gender identity issues.
• The rescission follows legal challenges and aligns with the executive order directives.
• Despite withdrawing the guidance, the EEOC emphasized that workplace harassment laws remain unchanged; sexual harassment enforcement is expected to remain a priority.

Related links

• EEOC Commission Votes to Rescind 2024 Harassment Guidance (01.23.26 press release)
• Federal Court Vacated Gender Identity Portions of EEOC Harassment Guidance: Employer Uncertainty Remains
• Federal Court Vacates Portions of EEOC Harassment Guidance (05.20.25 press release)

Article

On Jan. 22, 2026, the Equal Employment Opportunity Commission (EEOC) held an open Commission Meeting during which a majority of the commissioners voted to rescind the EEOC’s “Enforcement Guidance on Harassment in the Workplace” (Harassment Guidance). In a 2-1 vote, the Commission rescinded the Harassment Guidance in its entirety. Chair Andrea Lucas and Commissioner Brittany Panuccio voted to rescind the Guidance. Commissioner Kalpana Kotagal opposed the vote to rescind.

Background

The EEOC issued the Harassment Guidance on April 29, 2024, with the stated purpose of communicating the Commission’s position on legal issues related to harassment. At that time, the Commission approved the guidance by a 3-2 vote.

The Harassment Guidance covered all types of harassment under the Commission’s purview, including race, color, religion, sex, national origin, age, disability, and genetic information. The Harassment Guidance included illustrative examples of what could constitute harassment under the various statutes. Prior to issuing the Harassment Guidance, the Commission received over 37,000 comments from private individuals, organizations, and legislators.

The Harassment Guidance came under legal attack, particularly with respect to its discussion of gender identity issues. On May 15, 2025, a Texas federal court ruled the definition of “sex” in the Harassment Guidance was contrary to law (Texas, et al. v. EEOC, No. 2:24-CV-173 (N.D. Tex.)). See Federal Court Vacated Gender Identity Portions of EEOC Harassment Guidance: Employer Uncertainty Remains. In a 2025 press release following the Texas ruling, Chair Lucas stated she specifically opposed portions of the Harassment Guidance “that took the enforcement position that harassing conduct under Title VII includes ‘denial of access to a bathroom or other sex-segregated facility consistent with [an] individual’s gender identity;’ and that harassing conduct includes ‘repeated and intentional use of a name or pronoun inconsistent with [an] individual’s known gender identity.’”

The Commission’s Decision

The Commission majority justified its decision to rescind based on its belief that the Harassment Guidance constituted unauthorized substantive rulemaking beyond what Title VII authorizes. Further, the commissioners cited disagreement with the Harassment Guidance’s interpretation of harassment as it related to gender identity. Commissioner Panuccio highlighted the Texas federal court ruling, stating, “[t]he court concluded that the 2024 harassment guidance is contrary to law because it contravenes Title VII’s plain text by expanding the scope of sex beyond the biological binary of male and female, and contravenes Title VII by defining discriminatory harassment to include failure to accommodate a transgender employee’s bathroom pronoun and dress preferences.” Finally, the majority commissioners cited President Donald Trump’s Executive Order 14168: “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which directed the EEOC to rescind portions of the guidance that conflicted with that executive order, i.e., those related to gender identity.

Commissioner Kotagal argued against the broad rescission, stating that, at a minimum, before rescinding the Harassment Guidance, there should be a notice and comment period, during which the Commission should invite and consider public comment. Commissioner Kotagal noted that the Harassment Guidance was crafted with considerable public input and that, even if there were concerns over certain aspects of it, eliminating the entire Harassment Guidance would be “throwing the baby out with the bathwater.”  

Though two out of three commissioners voted to rescind the Harassment Guidance, all three commissioners reiterated their commitment to fighting unlawful harassment and emphasized the Commission’s commitment to do so through its enforcement activity.

What Employers Can Expect

The rescission of the Harassment Guidance does not change federal antidiscrimination laws, which prohibit harassment in the workplace. Moreover, even in the absence of the Harassment Guidance, the EEOC made clear that enforcement with respect to unlawful harassment remains a priority.
 
Finally, as always, in their decision-making, employers also should consider applicable state and local laws, investigate all harassment complaints, consider carefully requests for religious accommodation, and emphasize respect in the workplace for all employees.

Next Steps

For any questions as to how this may impact existing EEOC charges or litigation, please contact your Jackson Lewis attorney.