Harassment Prevention in 2026

On January 22, 2026, the Equal Employment Opportunity Commission (EEOC) voted 2-1 to rescind its “Enforcement Guidance on Harassment in the Workplace” (the “Guidance”), originally issued in 2024.

The rescission prompted federal lawmakers to introduce legislation that – among other things – would amend Title VII of the Civil Rights Act of 1964 (Title VII) to broaden its definition of sex to expressly include sexual orientation, gender identity, sex stereotypes, sex characteristics, and pregnancy, childbirth, or related medical conditions. While the elimination of the Guidance does not mean that the EEOC no longer recognizes harassment as a form of discrimination,[1] employers may be wondering how the Guidance came to be rescinded, and what this development means for them.

A Recap of Events

Chair Andrea Lucas (R) and Commissioner Brittany Panuccio (R) voted to rescind the Guidance, while Commissioner Kalpana Kotagal (D) voted in opposition. Two seats on the EEOC remain vacant, permitting two votes to constitute a majority of the quorum.

The Guidance had covered harassment based on all federally protected classes, including race, color, religion, sex, national origin, age, disability, and genetic information, and included examples of what could constitute harassment under federal statutes. It had consolidated previous guidance related to the #MeToo movement and harassment against LGBTQ+ individuals, including guidance issued in light of the Supreme Court’s 2020 decision in Bostock v. Clayton County. Bostock held that Title VII’s prohibition of employment discrimination based on “sex” includes sexual orientation and gender identity.

The Guidance generated controversy when it was approved on April 29, 2024, prompting Andrea Lucas – then a junior commissioner and one of two dissenters – to issue a statement condemning the documents as an attack on women’s rights, because of its inclusion of workplace harassment concerning gender identity. Lucas’ position and talking points were echoed in 2025 in one of the Executive Orders (EOs) signed by President Trump on the first day of his second term. EO 14168, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” directed the EEOC to rescind the Guidance, but it remained in place, because the EEOC lacked a quorum for much of 2025.

Meanwhile, the State of Texas sued to enjoin the Guidance, arguing in the United States District Court for the Northern District of Texas that the Guidance was contrary to law and exceeded the EEOC’s statutory rulemaking authority. In May 2025, the district court agreed, ruling in Texas et al. v. EEOC that the Guidance’s definition of “sex” was contrary to federal law. Finding that the Guidance improperly misinterpreted Bostock “by redefining the core definition of ‘sex.’” In the court’s view, Bostock only decided the narrower question of whether “fir[ing] someone simply for being a homosexual or transgender” violated Title VII. The court vacated portions of the Guidance related to gender identity and protection of transgender individuals from discrimination.

The EEOC responded immediately to this decision with an announcement reiterating then-Acting Chair Lucas’ position opposing portions of the Guidance, citing to EO 14168, and explaining that, because the EEOC could not (yet) rescind or modify the Guidance, the materials were marked up to indicate which portions had been vacated. Lucas did not convene the EEOC until January 2026 but was quick to put the Guidance to a vote once the Commission began meeting.

The Current Situation

On January 23, 2026, the EEOC issued a press release with a statement from  Chairwoman Lucas that, “[r]escinding this guidance does not give employers license to engage in unlawful harassment” and that “[f]ederal employment laws against discrimination, harassment, and retaliation, and Supreme Court precedent interpreting those laws, remain firmly in place.”

The Guidance has been removed from the EEOC website, except for a banner referencing that it had been approved on April 29, 2024 by a 3-2 vote. The same banner also cites Texas, et al. v. EEOC.

Notably, the 2026 recission is not limited only to sex, gender identity, and gender expression-related provisions. Rather, the Commission voted to rescind the Guidance in its entirety.

The EEOC majority justified the recission on the premise that the Guidance constituted unauthorized substantive rulemaking beyond what Title VII authorizes. Commissioner Panuccio stated, “[t]he [Texas] court 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.” 

In her opposition to the rescission, Commissioner Kalpana Kotagal argued that there should at least be a notice and comment period during which the commissioners may consider stakeholder comments. Commissioner Kotagal noted that the Guidance had been drafted with significant reliance on public input following a comment period, and rescinding the entire Guidance due to concerns over certain portions was “throwing the baby out with the bathwater.”

Absent substantive guidance regarding workplace harassment, the EEOC posted a webpage that describes harassment as “a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and the Americans with Disabilities Act of 1990, (ADA).”  According to a banner at the top of this page, its information is being reviewed and will be revised to comply with the law and executive orders.

Looking Ahead

In February 2026, shortly after the Guidance was rescinded, federal lawmakers reintroduced the Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace Act of 2026, or the BE HEARD Act. This bill was first introduced in 2019, in light of the #MeToo movement.

According to information provided by the bill’s sponsors, the legislation includes provisions that would, among other things:

• end mandatory arbitration and pre-employment nondisclosure agreements in an effort to increase transparency and allow workers to hold harassers and employers accountable;
• provide workers with increased access to training and information on what constitutes harassment, and their rights if they are harassed; and
• conduct a national prevalence survey on harassment in employment and make a report available to the public;
• strengthen workplace rights, including clarifying the standards of proof for discrimination and harassment and clarifying the standards for supervisor and employer liability; and
• allow workers more time to report harassment and increase the legal resources available to workers who wish to pursue legal action.

Notably, the bill would amend Title VII to provide statutory protection against employment discrimination on the basis of gender identity, sex stereotypes, and other variations on an understanding of the term “sex” and a reading of Bostock that remains controversial. Title VII has not been significantly amended since Congress enacted the Lily Ledbetter Fair Pay Act in 2009.

Meanwhile, on February 26, 2026, the EEOC issued a decision in an appeal of a federal employment matter, holding that Title VII permits federal agency employers to “maintain single-sex bathrooms and similar intimate spaces” and permits federal agency employers to “exclude employees, including trans-identifying employees, from opposite-sex facilities.” The decision, which opens with a citation to EO 14168, overturned Lusardi v. Department of the Army, a 2015 case whereby the EEOC held that the Army discriminated against a transgender worker by not allowing her to use the women’s bathroom. In a press release, the EEOC reiterated that the decision applies only to federal agencies under its jurisdiction.

While the ruling does not apply to private sector employers, nor bind any federal court, it does further underscore the Lucas’s unequivocal stance of refuting the applicability of Title VII’s prohibition on employment discrimination to transgender individuals. The decision offers to “fix the definition of sex under Title VII” by relying on the text of EO 14168 to provide that sex is an “immutable biological classification.” It is clear that, under current leadership, absent a contravening ruling by a court with jurisdiction[2], the EEOC will abide by this definition.

Takeaways for Employers

• The rescission of the Guidance neither rescinds nor alters federal anti-discrimination statutes – including Title VII, the ADA, and ADEA – which prohibit workplace harassment based on protected classes, including sex. That is because, unlike a statute or regulation, federal agency guidance does not have the force of law. However, agency guidance puts employers on notice of an agency’s interpretation of federal law and can be helpful for employers to understand what positions the EEOC is likely to take on certain issues.
• Neither the rescission of the Guidance nor the Texas district court’s decision in Texas et. al. v. EEOC ruling overturns or invalidates the US Supreme Court’s decision in Accordingly, Bostock remains binding precedent. However, different courts have come to conflicting conclusions on how far Bostock’s holding extends.
• Many state and local laws provide protections against workplace harassment that extend beyond those afforded under federal law. Notably, many states and localities expressly include sexual orientation and gender identity as protected classes. The rescission of the Guidance does not alter these state and local protections.
• A number of state and local jurisdictions impose harassment prevention requirements, and many courts recognize an employer’s anti-harassment programming as a defense to certain claims. Therefore, maintaining and consistently adhering to a policy prohibiting workplace discrimination in any form remains a best practice.
• Employers should monitor for proposed laws and regulations, such as the BE HEARD Act of 2026
• Employers should be aware that the EEOC has placed – and is anticipated to continue to place - more emphasis on majority-group discrimination, also known as “reverse discrimination.” In a unanimous 2025 decision, Ames v. Ohio Department of Youth Services, the Supreme Court removed court-imposed barriers on majority-group plaintiffs alleging workplace discrimination. As a result, majority-group plaintiffs do not need to meet a heightened standard of evidence (g., a male alleging workplace discrimination does not need to allege more than a female making the same claim) (see our prior discussions here and here).
• Watch this space for news of any proposed rules or new guidance from the EEOC, which is expected to maintain its recent focus on forms of discrimination such as “anti-American bias” and “illegal DEI.”
• The EEOC’s February 26, 2026, decision overturning portions of Lusardi only applies to federal employees. However, the decision signals a furtherance of the EEOC’s position regarding gender identity protections under federal law, particularly whether denying bathroom access constitutes sex discrimination and harassment under Title VII.

Staff Attorney Elizabeth A. Ledkovsky contributed to this post.

Endnotes

[1] The Supreme Court of the United States established this principle in 1986. Meritor Savings Bank v. Vinson.

[2] The complainant in the matter has a right to appeal the EEOC’s decision in federal court within 90 days.