02-03-2026
On January 22, 2026, the EEOC held an open meeting where the commissioners voted to rescind its “Enforcement Guidance on Harassment in the Workplace.” By a 2-1 vote, the Commission suspended the entire guidance. The Enforcement Guidance provided insight into the Commission’s perspective on race, color, religion, sex, national origin, age, disability, and genetic information-based harassment. The 2024 guidance incorporated previous guidance and added more modern issues, including digital harassment and the impact of the #MeToo movement. Moreover, it encompassed the Supreme Court’s decision in Bostock v. Clayton County on Title VII’s protections for discrimination based on sexual orientation or gender identity.
In removing the guidance, the Commission stated that it represented unauthorized substantive rulemaking beyond what Title VII authorizes. The majority also referenced their disagreement with the interpretation of harassment as it related to gender identity. Texas and the Heritage Foundation filed a lawsuit to challenge the sexual orientation and gender identity aspects of the 2024 guidance. In May 2025, a U.S district court in Texas upheld that challenge, holding that the EEOC’s positions on LGBTQ issues were contrary to law. Specifically, the court concluded that the guidance “expanded the scope of sex beyond the biological binary” and “contravene[d] Title VII by defining discriminatory harassment to include failure to accommodate a transgender employee’s bathroom, pronoun, and dress preferences.” Per the court’s decision, under Bostock, only firing someone for being homosexual or transgender violated Title VII.
Takeaways: Notwithstanding the EEOC’s removal of its guidance, employers’ obligations under anti-discrimination laws remain unchanged. The guidance was a non-binding document that shared insight into how the EEOC might view certain issues. The federal courts are ultimately responsible for determining whether workplace conduct violates Title VII or other anti-discrimination statutes. State laws and local ordinances expressly prohibiting discrimination remain in full effect.