January 22, 2026
UPDATE on EEOC’s Request to Rescind 2024 Guidance on Workplace Harassment
As a follow-up to the article below, which was posted on December 29, 2025, the U.S. EEOC announced on January 23rd that they voted 2-1 during their meeting the day before to rescind the entire 2024 “Enforcement Guidance on Harassment in the Workplace.” They make no statement regarding any plans to issue new Guidance. We may see some reference to new regulations when the EEOC’s Spring Regulatory Agenda is published. Stay tuned for developments. In the interim, you can listen to the meeting here.
ORIGINAL STORY:
This took me by surprise! Last year, the EEOC announced its plan to “remove or modify certain ‘gender identity’-related documents…[including] the Commission’s Enforcement Guidance on Harassment in the Workplace (issued by a 3-2 vote in 2024).” (emphasis added)
In May 2025, a court vacated the portions of that Guidance that expanded “the scope of sex beyond the biological binary…male and female” and defined “discriminatory harassment to include failure to accommodate a transgender employee’s bathroom, pronoun, and dress preferences.”
Put together, I anticipated the EEOC in 2026 would remove or modify only the portion of the Guidance that was related to gender-identity. Not so.
On December 29th, the EEOC submitted a final rule to the federal office of Management and Budget (OMB) to approve, “Rescission of Enforcement Guidance on Harassment in the Workplace.” The rule was not published, just announced. Based on the title, it proposes to rescind the entire Guidance, not just the portions related to gender-identity.
It is also interesting that the Commission is not submitting this as a proposed rule for which there would be a period for public notice and comment. Stay tuned for the Administration’s response and what that means for employers.
UPDATE: On January 6th, EEO Leaders, a group formed just shy of one year ago and comprised of former officials of the EEOC and U.S. DOL’s OFCCP, published a letter opposing the rule and lack of a notice and comment period.
