Introduction
On January 22, 2026, in a 2-1 vote, the Equal Employment Opportunity Commission (“EEOC”) voted to rescind its 2024 Guidance on Harassment (the “Guidance”), marking a shift in the Agency’s enforcement priorities. More specifically, the Guidance was the first comprehensive articulation of what harassment looked like in the modern workplace, providing extensive examples of what harassment based on sex (including sexual orientation and gender identity), as well as race, religion, disability, age, and more looked like. With the recission, the Agency has left no guidance in its place for purposes of illustrating to employers, and employees alike, what is considered unlawful harassment under Title VII of the Civil Rights Act of 1964 (“Title VII”).
The Guidance
The Biden-Era Guidance was the first major update to the EEOC’s interpretation of what constitutes unlawful harassment in the workplace since the 1990s. Approved by a 3-2 vote in April 2024, the Agency intended for the Guidance to “serve[] as a single, unified agency resource on EEOC-enforced workplace harassment law.” The Guidance specifically acknowledged the Bostock v. Clayton County holding, and recognized that harassment based on sexual orientation and gender identity is unlawful harassment based on sex under Title VII. The Guidance also noted that a hostile work environment could be predicated on one single instance, if sufficiently severe. In addition, the Guidance served as a comprehensive resource to employers, and employees alike, on what unlawful harassment, based on many different characteristics, constituted in the modern workplace.
Challenges to the Guidance
The recission likely stems from the pushback that has been received regarding the definition of harassment “based on sex.” More specifically, the Trump Administration issued its January 20, 2025, Executive Order 141468, which prompted federal agencies, such as the EEOC, to return to the binary definition of sex and to only enforce litigant’s rights consistent with said definition. Additionally, on May 15, 2025, a Texas federal court declared unlawful and vacated portions of the Guidance as contrary to law, specifically those related to gender identity. Texas, et al. v. EEOC, 2:24-CV-173 (N.D. Tex. May 15, 2025). The Court argued that the Agency had exceeded its statutory authority with its adoption of the Guidance. Id.
Further, EEOC Chairwoman, Andrea Lucas, has previously opposed the Guidance and stated her intentions of rescinding the same upon the EEOC re-convening a quorum in late 2025. Accordingly, on January 22, 2026, the Agency officially, and effectively immediately, rescinded the Guidance in its entirety, despite the majority of objections stemming from the articulations of harassment based on sexual orientation and gender identity alone.
Practical Implications and What Employers Need to Know
Despite the change in the EEOC’s enforcement policies, federal law prohibiting discrimination and harassment based on sexual orientation and gender identity remain intact. More specifically, Bostock is still good law, and the EEOC’s decision to revert back to the binary definition of sex does not change how federal courts interpret said law. The Agency has even acknowledged that the protections outlined in Bostock remain.
However, what this does mean is that the EEOC will no longer pursue claims of discrimination, harassment, or retaliation based on sexual orientation or gender identity. Rather, the Agency will narrow its focus on discrimination and harassment as a result of biological sex. It should be noted that Chairwoman Lucas specifically stated that the recission does not give employers license to harass. However, what constitutes sex-based harassment will look drastically different moving forward based on the Agency’s standards.
Furthermore, employers ought to remain diligent, especially if they operate in states or localities that have greater protections for employees than outlined in federal laws, such as Title VII. For example, employers in Philadelphia, as well as Pennsylvania generally, are still prohibited from engaging in harassment based on sexual orientation and gender identity. To that end, while the EEOC may not enforce these rights, FERPA’s such as the PHRC and PCHR will continue to do so given the fact that Bostock remains the law of the land.
Conclusion
In sum, the EEOC’s recent recission of the Guidance does not change existing law. However, it does signal a shift in the EEOC’s enforcement agenda, and it is particularly noteworthy that the Agency decided to rescind its Guidance without leaving anything in its place. As a result, employers may be left uncertain and unsure how to proceed. However, remember that employers are still legally responsible for preventing and correcting unlawful harassment in the workplace. But now, the best way to proceed is to primarily rely on binding case law, as well as applicable statutes, and state and local rules and regulations in order to guide compliance. As well as consulting your trusted Labor & Employment attorneys at Margolis Edelstein for all your employment-related needs.
Article by: Alexandra Lynch, John M. Nolan III
