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March 4, 2026
On January 22, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) voted 2-1 to rescind its “Enforcement Guidance on Harassment in the Workplace” (Guidance) that it initially approved in 2024.
The Guidance and Reasons for Recission
On April 29, 2024, President Biden’s EEOC voted 3-2 to issue the Guidance for the purpose of establishing the Commission’s position on legal issues covering the categories of harassment under its purview (race, religion, national origin, sex, color, disability, genetic information, and age) and how it interprets and enforces workplace harassment laws under Title VII of the Civil Rights Act of 1964 and related statutes. Notably, the Guidance expanded Title VII’s definition of “sex” to include gender identity, in addition to sexual orientation. While not legally binding, the Guidance was an influential framework used to guide the crafting of workplace harassment policies and ensure compliance with federal law.
Following its issuance, the Guidance was the subject of numerous attacks. For example, on January 20, 2025, President Trump signed Executive Order 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” (EO), which directed agencies, including the EEOC, to revise or rescind guidance that included gender identity as part of the definition of “sex” because those provisions conflicted with the Administration’s position on sex-based legal definitions. The EO’s specific directive to the EEOC was to identify and rescind portions of the Guidance that addressed gender identity-based pronouns, bathroom/sex-segregated facility access, and dress codes that the EO considered inconsistent. After President Trump issued the EO, the EEOC vacated the relevant portions of the Guidance.
Further, on May 15, 2025, a federal judge in the Northern District of Texas held that the Guidance’s expanded definition of “sex” exceeded the EEOC’s authority, and defining harassment to include non-accommodation of preferred pronouns, bathrooms, and dress codes was contrary to the law. This ruling, in Texas, et al. v. EEOC, No. 2:24-CV-173 (N.D. Tex.), applied nationwide and invalidated provisions of the Guidance dealing with the use of names/pronouns inconsistent with an individual’s “known gender identity” and access to bathrooms/sex-segregated facilities based on gender identity.
The EEOC rescinded the Guidance in response to the Texas ruling and to further align with President Trump’s EO. Despite the rescission, the underlying statutes (e.g., Title VII) and case law governing workplace harassment remain in place.
Employer Takeaways
The Texas decision drastically changed the regulatory landscape for employer anti-harassment policies, especially those concerning accommodations for transgender employees.
Moving forward, employers should anchor their policies to relevant statutes and case law, rather than the rescinded Guidance. For example, anti-harassment policies should replace references to the Guidance with citations to Title VII and applicable state and local laws and note that the Guidance has been rescinded. It is crucial for employers to address gender-identity issues carefully and with their specific jurisdiction in mind, as many states and local governments prohibit discrimination based on gender identity and may have their own guidance. Multi-state employers will likely need jurisdiction-specific policies for each region in which they maintain operations to ensure compliance with those specific laws.
Employers also should continue to maintain the core harassment fundamentals, including multiple reporting channels, anti-retaliation assurances, prompt and impartial investigations, and proportionate corrective action, as these remain priorities for enforcement of applicable laws even without the examples previously provided in the Guidance. Employers must communicate to their employees that, while the Guidance has been rescinded, their standards are unchanged and all forms of unlawful harassment remain prohibited.
This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice. Always consult an attorney with specific legal issues.
