EEOC Rescinds Enforcement Guidance on Harassment

On January 22, 2026, the U.S. Equal Employment Opportunity Commission voted to rescind its Enforcement Guidance on Harassment in the Workplace. The proposal to rescind the guidance was approved two-to-one, with Chair Andrea Lucas (R) and Commissioner Britanny Panuccio (R) voting to repeal the document, and Commissioner Kalpana Kotagal (D) voting against rescission. The rescission is unsurprising now that the Commission has a quorum. Almost immediately after assuming her role as then-acting chair in January 2025, now-Chair Lucas signaled her opposition to portions of the guidance and indicated that she would seek to rescind or revise it as soon as she had the votes to do so.

While the rescission is effective immediately, as a legal matter, the repeal of non-binding EEOC guidance does not dramatically alter federal anti-harassment law, nor does it bear on state civil rights laws that prohibit workplace harassment.

History of Harassment Enforcement Guidance

In 2015, the EEOC established a Select Task Force on Harassment in the Workforce; in 2016, the Task Force released its co-chairs’ report, which set forth its findings and concluded with a series of “promising practices” for eliminating harassment on all prohibited bases in the workforce. The agency later published for public comment a revised draft Enforcement Guidance, but that draft was never formally approved or finalized. 

In September 2023, the agency again published proposed Enforcement Guidance; that document was approved and finalized in 2024. The 2024 Guidance consolidated previous guidance and addressed modern challenges like digital harassment and the impact of the #MeToo movement. It likewise set forth the Commission’s guidance on LGBTQ discrimination in the wake of the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, which held that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sexual orientation or gender identity. 

Injunction of Sections of the 2024 Guidance Relating to LGBTQ Matters

The State of Texas and the Heritage Foundation sued to enjoin the 2024 Guidance, arguing that the document was contrary to law, arbitrary and capricious, and in excess of the EEOC’s statutory rulemaking authority. In May 2025, the U.S. District Court for the Northern District of Texas agreed with the plaintiffs. Specifically, it concluded that the EEOC’s positions relating to LGBTQ issues were contrary to law insofar as they, in the court’s words, “expand[] the scope of sex beyond the biological binary” and “contravene Title VII by defining discriminatory harassment to include failure to accommodate a transgender employee’s bathroom, pronoun, and dress preferences.” The court held that the EEOC guidance improperly misinterpreted Bostock “by redefining the core definition of ‘sex.’” In its view, the only question decided in Bostock was whether “fir[ing] someone simply for being a homosexual or transgender” violates Title VII. In light of these findings, the court ordered that those sections of the guidance relating to sexual orientation and gender identity be vacated. Following the court’s decision, the agency revised it website to indicate precisely which provisions of the guidance were voided. 

2026 Rescission

The 2026 vote to rescind the guidance was not limited to LGBTQ issues or Bostock. Rather, the Commission repealed the guidance in its entirety. It is unclear whether or when the Commission may issue revised (likely more narrow) guidance on workplace harassment generally and/or LGBTQ protections specifically.

Broadly speaking, the repeal of the guidance does not have significant legal effect. The Guidance (unlike a statute or regulation) was a non-binding document without the force of law. It was nevertheless useful to employers seeking to know what positions the EEOC would take on certain issues because it put stakeholders on notice of the agency’s view of the law and its meaning. Ultimately, however, the EEOC cannot conclusively determine that any given conduct is lawful or unlawful under Title VII—that determination is made by the courts. 

With respect to LGBTQ issues in particular, employers should still proceed with caution where these issues arise. First, unless and until reversed, the Bostock decision remains the law of the land. Thus, Title VII protects against discrimination on the basis of sexual orientation and gender identity, although the full scope of those protections is not yet entirely clear. When it decided Bostock, the Supreme Court expressly noted that it was not “addressing bathrooms, locker rooms, or anything else of the kind” (including, presumably, pronoun usage) and that those were “questions for future cases.” In the wake of Bostock, courts have come to differing conclusions as to the scope of the case’s application and protections.

Perhaps more important, many state and local laws and ordinances expressly prohibit discrimination on the basis of sexual orientation and gender identity, irrespective of how the Commission views the scope of federal law. These state and local laws remain in full force and effect. 

Finally, even if the EEOC does not pursue a claim of discrimination or makes a no-cause determination, a private plaintiff can request a right-to-sue letter and institute a civil lawsuit on their own behalf.

Notwithstanding rescission of the EEOC’s guidance, employers are advised to continue to ensure that their workplaces are free of unlawful discrimination and be especially mindful of state and local law considerations. Littler’s Workplace Policy Institute will continue to keep readers apprised of notable developments.