EEOC Rescinds Enforcement Guidance on Harassment in the Workplace

EEOC Rescinds Enforcement Guidance on Harassment in the Workplace

Written By: James R. O’Connor 

January 27, 2026 

Employers Must Continue to Follow Title VII and Protections Set Forth by State Law 

On January 22, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) voted to rescind its Enforcement Guidance on Harassment in the Workplace. This is one of the first acts the EEOC has taken since it achieved a quorum in October 2025. 

The rescission took effect immediately. EEOC guidance is certainly an instructive resource for employers and practitioners, but it is not binding law. Thus, the rescission does not significantly change federal law, and employers must remain vigilant that they are also complying with state and local laws, which are often more favorable to workers than federal law. 

THE HARASSMENT ENFORCEMENT GUIDANCE 

In September 2023, the EEOC published proposed Enforcement Guidance; that document was approved and finalized in April 2024. The Guidance consolidated previous EEOC publications and expanded the harassment protections in the

workplace. It was widely viewed as a response to the impact of the #MeToo movement. It also provided 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. 

Of note, the Guidance stated that sex-based harassment under Title VII includes conduct based on an individual’s sexual orientation or gender identity, including how that identity is expressed. This would include “outing” a person’s sexual

orientation or gender identity, repeated or intentional misgendering (using a pronoun inconsistent with a person’s gender identity) and “dead naming” (using a name used by a person prior to their transition), as well as denying a person access to a bathroom or other sex-segregated facility consistent with the person’s gender identity. The Guidance also stated that harassment also includes conduct directed toward a person because the person presents themselves in a manner that is different from that which would be stereotypically associated with that person’s sex. 

In May 2025, a federal court concluded that the EEOC’s guidance improperly “expand[ed] the scope of ‘sex’ beyond the biological binary” and “contravene[d] Title VII by defining discriminatory ‘harassment’ to include transgender bathroom, pronoun, and dress preferences.” Among other things, the court vacated those sections of the Guidance relating to sexual orientation and gender identity. After the decision, the EEOC revised its website to indicate precisely which provisions of the guidance were voided. But the Guidance remained otherwise valid because the EEOC could not formally rescind or repeal it without a quorum. 

THE RESCISSION OF ENFORCEMENT GUIDANCE ON HARASSMENT IN THE WORKPLACE 

Current EEOC Chair Andrea Lucas has long signaled a desire to rescind the Guidance, which she voted against in 2024. On January 22, 2026, the EEOC rescinded the entire Guidance document, not just the items vacated by the court. Rather, the Commission repealed the Guidance in its entirety. 

Employers should still proceed with caution where these issues arise in the workplace. All complaints of harassment should be taken seriously and investigated per company policy. 

The Bostock decision remains valid Supreme Court precedent. 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” and that those were “questions for future cases.” After Bostock, courts have come to differing conclusions as to the scope of the decision. 

Importantly, many state and local laws, including the New York State Human Rights Law and New York City Human RightsLaw, expressly prohibit discrimination and harassment on the basis of sexual orientation and gender identity. Employers still must comply with these laws, and employees can still bring such lawsuits under both state and federal law on these grounds. 

Additional Assistance
Our Labor and Employment attorneys remain ready to provide advice and guidance on complying with these new laws or any other workplace issues. For further assistance, please contact any of the attorneys on our Labor and Employment Practice Team or the Phillips Lytle attorney with whom you have a relationship.