What to Make of EEOC Rescission of Its Harassment Guidance

On January 22, 2026, the Equal Employment Opportunity Commission (EEOC) voted 2-1 to rescind its Enforcement Guidance on Harassment in the Workplace.  The EEOC had issued its harassment guidance back in 2024, although a federal court vacated portions of the guidance in 2025 related to sexual orientation and gender identity, finding that the EEOC had exceeded its authority.  When the EEOC later amended the harassment guidance, Chair Andrea Lucas stated that the guidance provided an interpretation of Title VII that the federal agency lacked the authority to issue.  She stated:  “Title VII only provides the EEOC with the authority to issue procedural regulations - basically, quote - unquote ‘procedural regulations,’ not substantive regulations.”  “Because I had previously indicated that the EEOC is endangering women by directing employers to let people use workplace facilities that correspond with their gender identity, I also disagree with the EEOC’s position that repeatedly misgendering someone could be considered unlawful harassment. “ The second EEOC Commissioner who voted to rescind the guidance explained that workplace harassment that violates the laws remain a violation of those laws, with or without the guidance.  The single member voting against the rescission argued that the guide provided a comprehensive guidance that clarified the legal standards for harassment and helped employers to know their responsibilities. The third EEOC member also indicated that, instead of adopting a surgical approach to excise the sections they disagreed with, the EEOC was throwing out the “baby with the bath water.” 

 Editor’s Note:  The rescission of the EEOC guidance does not affect the obligation of employers to comply applicable standards as set forth in the case law, but it does affect enforcement efforts of the EEOC in regard to harassment issues.

This article is part of our March 2026 Newsletter. 

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