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On January 22, 2026, with a quorum in place, the U.S. Equal Employment Opportunity Commission (EEOC) voted 2-1 to rescind its Enforcement Guidance on Harassment in the Workplace. For background on the guidance and related litigation, see our previous Alert.1
What precipitated the rescission of the guidance was its application to sexual orientation and gender identity. While some anticipated a partial rescission that would focus only on sexual orientation and gender identity, the guidance was ultimately rescinded in its entirety.
What is the significance of the recission? In short, less than some commentators have suggested.
As an initial matter, it is important to remember that the guidance was just that—guidance. More specifically, unlike a statute or regulation, the guidance did not have the force of law.
Further, this recission is not likely to change the EEOC's enforcement priorities. We expect that the EEOC will continue to prosecute claims of harassment based on (biological binary) sex, pregnancy, race, religion, disability and other protected groups under the federal civil rights laws.
What the EEOC will not do is prosecute harassment claims based on transgender status. However, even before the rescission, the EEOC's enforcement position was that the 2020 U.S. Supreme Court decision in Bostock applies only to hiring and firing and does not apply to harassment.2
It should be noted that not all courts agree with the EEOC's enforcement position. Several federal appellate and district courts have held that Bostock prohibits harassment based on sexual orientation and gender identity.
Further, many state and local statutes, regulations and ordinances expressly prohibit harassment based on sexual orientation and gender identity. These state and local laws remain in full effect.
For these reasons, employers generally are well advised to prevent and remedy harassment based on sexual orientation and gender identity. However, there are at least two types of situations where a clash of rights may occur. More specifically:
- An employer allows a transgender woman to use the women's bathroom to avoid a claim by the transgender employee. A woman who is not transgender claims harassment under federal law by virtue of there being a biological man in the women's bathroom. See Lucas dissent in footnote 1.
- An employer disciplines an employee for harassing a transgender employee by not using his preferred pronouns. The disciplined employee claims discrimination under federal law, arguing that to use the employee's preferred pronouns would violate his or her religious belief that sex is binary. Compare Kluge v. Brownsburg Community School Corporation with Trueblood v. Valley Cities Counseling & Consultation.
With regard to both of these issues, the law is still in its nascent stage. Consequently, employers will need to manage rather than eliminate legal risk. There is no one-size-fits-all solution but rather a continuum of options based on an employer's priorities and risk tolerance. Employers may find that this complex legal landscape is best navigated with the assistance of experienced legal counsel.
For More Information
If you have any questions about this Alert, please contact Jonathan A. Segal, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Footnotes
1. The guidance had been adopted in 2024 over the dissent of the then two Republican minority members of the EEOC, including now Chair Andrea Lucas. To understand the EEOC's current enforcement positions, it is worth reading the Lucas dissent from the time the guidance was adopted.
2. In Bostock v. Clayton County, 590 U.S. 644 (2020), the U.S. Supreme Court held that Title VII's prohibition on sex-based discrimination also prohibits discrimination on the basis of an individual's sexual orientation or gender identity. Notably, the Supreme Court limited its holding to discharge decisions. The Supreme Court did not rule one way or the other on Bostock's applicationto workplace harassment.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.
