Unpacking the EEOC’s 2026 Rescission: Navigating Workplace Harassment Without the 2024 Guidance
The United States Equal Employment Opportunity Commission (“EEOC”) recently rescinded its 2024 Enforcement Guidance on Harassment in the Workplace (“Guidance”), which included guidance related to gender identity discrimination and harassment against LGBTQ+ workers. This rescission, while expected, signals an ongoing shift in priorities at the federal level, which creates confusion and uncertainty and raises compliance issues for employers. Based on this change, employers should stay up-to-date on the evolving guidance and best practices for creating and maintaining a compliant and inclusive workplace.
Highlights:
The Guidance was an overhaul of existing harassment standards and represented the first time in 20 years that the agency conducted a comprehensive overhaul.
The Guidance spoke about harassment with respect to a wide range of protected categories, such as sex, pregnancy, sexual orientation, gender expression, and gender identity, articulated principles that relate to a hostile work environment, and gave examples of potential harassment. Importantly, it was the first time that the agency spoke about how certain conduct and statements, such as misgendering, could give rise to liability.
The EEOC voted 2-1 to rescind the Guidance issued under the Biden administration.
The rescission is effective immediately.
The rescission follows legal challenges and a change in administration, aligning with Trump administration executive order directives.
Title VII of the Civil Rights Act of 1964 continues to prohibit employment discrimination based on sex, which includes sexual orientation and gender identity.
State and local laws and ordinances that expressly prohibit discrimination on the basis of sexual orientation and gender identity remain in full force and effect.
The action removed language regarding matters including misgendering and restroom access consistent with an employee's gender identity.
The EEOC emphasized that workplace harassment laws remain unchanged and that it will continue to prioritize sexual harassment enforcement.
With a quorum and a current Republican majority at the EEOC, this change was expected based on the Trump administration’s expressed policy priorities. The rescission follows legal challenges and a change in administration, aligning with Trump administration executive order directives found in the January 20, 2025, Executive Order 14168, which directed federal agencies to remove policies that "promote gender ideology" and emphasized a binary interpretation of “sex.” Chair Andrea Lucas expressed that the previous guidance exceeded the EEOC’s authority. In withdrawing the 2024 guidance, the EEOC emphasized that workplace harassment laws remain unchanged and that it would continue to prioritize sexual harassment enforcement.
Specifically, the action removed language stating that repeated and intentional misgendering and denying access to a restroom consistent with an employee's gender identity are potential forms of unlawful harassment under Title VII of the Civil Rights Act of 1964 (“Title VII”). With this rescission, what, then, is permissible and prohibited in the workplace?
Title VII continues to prohibit employment discrimination based on sex, which includes sexual orientation, gender identity, and gender expression in accordance with Bostock. Indeed, courts may also interpret Title VII independently of the EEOC’s current enforcement position.
While the repeal of non-binding EEOC guidance does not dramatically alter federal law with respect to harassment, it does indicate how the federal government will investigate claims and will enforce civil rights laws. It also creates uncertainty surrounding what policies, procedures, and training employers should have in effect, especially with respect to LGBTQ+ employees. Furthermore, it is critical to note that many state and local laws and ordinances expressly prohibit discrimination on the basis of sexual orientation, gender identity, and gender expression. These laws remain in effect regardless of the EEOC’s current interpretation of the scope of Title VII.
Notwithstanding the rescission of the Guidance, employers should continue to investigate claims of harassment and take appropriate action where necessary, create a culture and a climate of respect and professionalism, and train their staff on how to combat harassment. In addition, employers may find increased value in reviewing and strengthening their existing policies and procedures that may refer to or incorporate the Guidance. Employers also should remain committed to complying with the statutory requirements of state or local laws, which may be stricter or reflect different ideals or goals.
Partner Giovanni Antonucci Di Cesare (giovanni.antonucci@pierferd.com) and Junior Partner Allison Bustin (allison.bustin@pierferd.com), Employment, Labor, and Benefits Department, are available to counsel on labor and employment matters, including discrimination, harassment, and hostile work-environment matters.
This publication and/or any linked publications herein do not constitute legal, accounting, or other professional advice or opinions on specific facts or matters and, accordingly, the author(s) and PierFerd assume no liability whatsoever in connection with its use. Pursuant to applicable rules of professional conduct, this publication may constitute Attorney Advertising. © 2026 Pierson Ferdinand LLP.
