On January 22, 2026, the U.S. Equal Employment Opportunity Commission voted to rescind its “Enforcement Guidance on Harassment in the Workplace” (“Harassment Guidance”) adopted on April 29, 2024.
HISTORY
The Harassment Guidance was the EEOC’s attempt to clarify (for the first time since the 1990’s) the types of prohibited harassment against protected classes. The Harassment Guidance covered traditionally-recognized protected classifications such as race, religion, national origin, age, color, disability, and pregnancy, and also addressed gender identity and sex-based harassment and specifically incorporated the United States Supreme Court’s 2020 decision in Bostock v. Clayton County, Georgia, which prohibited employers from making hiring or termination decisions based on sexual orientation or gender identity under Title VII, thereby expanding protections for LGBTQ individuals including the intentional use of incorrect pronouns, denial of access to bathrooms or sex-segregated facilities consistent with an individual’s gender identity, and forced disclosure of an individual’s sexual orientation or gender identity without permission.
Before its repeal, parts of the Harassment Guidance addressing sexual orientation and gender identity had already been vacated nationwide in May 2025 by a U.S. District Court for the Northern District of Texas, which held that the EEOC exceeded its statutory authority in issuing the Harassment Guidance and that it could not: (a) legally define “sexual orientation” and “gender identity” as federally protected classes (b) define “sex” to include sexual orientation and gender identity; and (c) prohibit the intentional or repeated use of incorrect pronouns by employers.
The decision to rescind the Harassment Guidance aligns the EEOC with President Trump’s Executive Order 14168: “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which provides that the Federal government recognizes only two binary genders (male and female) and directs the EEOC to rescind any conflicting portions of the Harassment Guidance.
Legal Impact
Repeal of the Harassment Guidance does not alter existing federal anti-discrimination laws or court decisions that provide protection against unlawful workplace harassment. Although it provided clarification as to the nature and scope of certain forms of unlawful workplace harassment, the Harassment Guidance was a non-binding interpretive document. In connection with the rescission, the EEOC chair Andrea Lucas commented: “[r]escinding this guidance does not give employers license to engage in unlawful harassment” and that “[t]he EEOC is committed to evenhanded enforcement of these laws. The agency will continue to be dedicated to preventing and remedying unlawful workplace harassment.” It remains to be seen whether repeal of the Harassment Guidance will have short- or long-term effects on the EEOC’s handling of charges to which the Harassment Guidance formerly applied.
Repeal of the Harassment Guidance also has no impact on any state or local anti-harassment laws, and employers should continue to monitor those closely to remain in compliance.
If you have any questions regarding the rescission of the Harassment Guidance or how it may affect your organization, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.