As discussed here, on November 1, 2023, the Equal Employment Opportunity Commission (EEOC) finalized a new anti-harassment resource titled Enforcement Guidance on Harassment in the Workplace (“Guidance”). The Guidance was approved and published by the EEOC on April 29, 2024, and was immediately subjected to legal challenge.  

On May 15, 2025, a federal district court in Texas vacated the gender identity parts of the updated Guidance, finding that the EEOC had exceeded its statutory authority by expanding the definition of “sex” under Title VII “beyond the biological binary.”i At the time, the EEOC responded by simply adding a notation to their website and taking steps to label and shade those portions of the Guidance that the court held were unlawful and vacated.  

On January 22, 2026, the EEOC, in an open Commission Meeting, voted to rescind the Guidance in its entirety. The EEOC majority based its rescission on the belief that the Guidance constituted unauthorized substantive rulemaking beyond what Title VII of the Civil Rights Act of 1964 authorizes. Specifically referenced by the majority was the Texas federal court ruling, which “concluded that the 2024 harassment guidance is contrary to law because it contravenes Title VII’s plain text by expanding the scope of sex beyond the biological binary of male and female, and contravenes Title VII by defining discriminatory harassment to include failure to accommodate a transgender employee’s bathroom, pronoun and dress preferences.”  

The Guidance has been removed from the EEOC’s website.  

What Does it Mean 

For employers, the rescission of the Guidance will have little impact. As EEOC Chair Andrea Lucas stated after the rescission was announced, “rescinding this guidance does not give employers license to engage in unlawful harassment. Federal employment laws against discrimination, harassment, and retaliation, and Supreme Court precedent interpreting those laws, remain firmly in place.”  Doubling down on ongoing EEOC enforcement efforts, Chair Lucas made clear, “[t]he agency will continue to be dedicated to preventing and remedying unlawful workplace harassment.” 

In the absence of official EEOC guidance, employers should continue to: 

• Follow state and federal antiharassment and discrimination laws; 

• Continue to conduct timely investigations into all complaints of harassment, discrimination and retaliation; 

• Carefully consider requests for all forms of accommodation (e.g., medical and religious); and 

• Continue to require employees to treat everyone – regardless of any protected classification – with respect.