On January 22, 2026, the Equal Employment Opportunity Commission (the “EEOC”) voted 2-1 to rescind its “Enforcement Guidance on Harassment in the Workplace” (“Enforcement Guidance”).
Background
The EEOC originally promulgated the Enforcement Guidance on April 29, 2024 to provide a framework for how it assessed compliance with federal equal employment opportunity statutes such as Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act, and the Americans with Disabilities Act.
Most notably, the Enforcement Guidance confirmed that federal protection from workplace discrimination based on sex extends to sexual orientation and gender identity. The Enforcement Guidance noted that sex-based discrimination or harassment under Title VII “includes harassment based on sexual orientation or gender identity, including how that identity is expressed.” U.S. Equal Employment Opportunity Commission, Enforcement Guidance on Harassment in the Workplace, at 17 (EEOC Notice No. 915.064, Apr. 29, 2024). This interpretation of Title VII was influenced by the United States Supreme Court’s ruling in Bostock v. Clayton County, 590 U.S. 644 (2020). In Bostock, the Supreme Court held that an employer who fires an employee merely for being gay or transgender violates Title VII. See id.
The Enforcement Guidance also provided following examples of harassing conduct based on sexual orientation or gender identity: use of epithets regarding sexual orientation or gender identity, disclosing a person’s sexual orientation or gender identity without permission, misgendering (or repeated and intentional use of a name or pronoun inconsistent with the person’s identified gender), and denial of access to a bathroom or other gender-segregated facility consistent with an individual’s identified gender. See id.
On May 15, 2025, the Northern District Court of Texas, however, determined that the Enforcement Guidance, and the EEOC, went too far in its interpretation of Bostock. In Texas v. Equal Employment Opportunity Comm’n, the Court held that “the Enforcement Guidance contravenes Title VII by defining discriminatory “harassment” to include transgender bathroom, pronoun, and dress preferences.” Texas v. Equal Emp. Opportunity Comm’n, 785 F. Supp. 3d 170, 189 (N.D. Tex. 2025). The Court reasoned that the Guidance expanded Title VII well beyond the narrow holding in Bostock, which prohibited the termination of a transgender or homosexual person’s employment. See id. at 190 (“[u]nder Title VII … we do not purport to address bathrooms, locker rooms, or anything else of the kind.”)
The Rationale for the EEOC’s Decision
Rather than preserve the unchallenged portions of the Enforcement Guidance, on January 22, 2026, the EEOC decided to rescind the document in its entirety. In explaining its rationale, EEOC Chair Andrea Lucas suggested that the Enforcement Guidance was akin to a legislative decree, and that the EEOC is confined to promulgating guidelines that interpret federal statutes under the Administrative Procedure Act. See Public Meeting on Harassment Enforcement Guidance, U.S. Equal Employment Opportunity Commission, at 20 (Jan. 22, 2026), transcript available at https://www.eeoc.gov/meetings/meeting-january-22-2026/transcript (last accessed Feb. 13, 2026).
Nevertheless, Commissioner Lucas noted that “[r]escinding this guidance does not give employers license to engage in unlawful harassment” and “[f]ederal employment laws against discrimination, harassment, and retaliation, and Supreme Court precedent interpreting those laws, remain firmly in place.” EEOC Commission Votes to Rescind 2024 Harassment Guidance, U.S. Equal Employment Opportunity Commission Press Release (Jan. 23, 2026), available at https://www.eeoc.gov/newsroom/eeoc-commission-votes-rescind-2024-harassment-guidance (last accessed Feb. 13, 2026). The EEOC also affirmed that it will continue to work to prevent and remedy unlawful workplace harassment. See id.
What This Means for Employers
The recission of the 2024 Enforcement Guidance does not alter the obligation of employers to follow existing federal, state and local employment statutes. Employers should continue to investigate all complaints of harassment or discrimination made by their employees and monitor any further developments in their state and/or local laws.
Please contact an NFC team member if you have any questions or seek further assistance.