EEOC Withdraws Harassment Guidance

The decision follows several legal and administrative developments, including a federal court ruling in Texas, executive orders issued by President Trump in 2025, and continuing debate regarding the scope of ‘sex' discrimination under Title VII of the Civil Rights Act. Employers operating across the United States must remain alert to compliance obligations that continue to apply, even as the regulatory landscape evolves.

How the rescission unfolded

The EEOC voted 2–1 to withdraw the 2024 Guidance. Two vacancies on the five member Commission meant that two votes constituted a majority.

The 2024 Guidance, issued during the Biden administration, had consolidated longstanding EEOC interpretations covering harassment across all protected characteristics, including race, colour, religion, sex, national origin, age, disability and genetic information. It also incorporated developments from the #MeToo era and guidance on harassment involving 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.) Significant criticism focused on the sections relating to gender identity.

The situation accelerated after a Presidential executive order in 2025 instructed the EEOC to withdraw the Guidance, and after the State of Texas successfully challenged portions of it in federal court. After this ruling, the EEOC marked the invalidated portions; once meetings resumed in January 2026, the Commission moved the rescission to a vote.

The current legal landscape

On 23 January 2026, the EEOC confirmed that withdrawing the Guidance ‘does not give employers licence to engage in unlawful harassment'. All federal anti‑discrimination laws — including Title VII and legislation prohibiting age and disability discrimination — remain fully in force.

The EEOC has removed the 2024 Guidance from its website and replaced it with a temporary harassment webpage, noting that the materials are under review. The withdrawal covers the entire 2024 Guidance, not only provisions involving gender identity.

The majority stated that the Guidance amounted to unauthorised substantive rulemaking. The dissenting commissioner expressed concern about removing comprehensive harassment resources without a public comment process.

Legislative and regulatory developments to watch

Shortly after the rescission, lawmakers reintroduced the BE HEARD Act of 2026, originally proposed in 2019 following the #MeToo movement. The bill would:

• restrict mandatory arbitration and pre‑employment confidentiality agreements;
• require clearer training and information for workers;
• mandate a national harassment prevalence survey;
• clarify standards of proof for discrimination and harassment;
• expand resources for individuals pursuing legal action; and
• amend Title VII to explicitly include gender identity, sex stereotypes and variations of sex characteristics.

If enacted, it would broaden federal protections and provide greater clarity in areas where current EEOC guidance is unsettled.

The EEOC's evolving interpretation of sex discrimination

Another important development occurred on 26 February 2026, when the EEOC issued a decision in a federal employment appeal involving access to single‑sex facilities. The decision:

• overturned prior EEOC precedent;
• held that federal agencies may restrict employees, including transgender employees, from using facilities aligned with their gender identity; and
• relied on an executive order defining sex as an ‘immutable biological classification'.

The Commission emphasised that this ruling applies only to federal agency employers. Nevertheless, it illustrates the EEOC's current interpretive direction.

Private employers remain bound by Title VII and the Supreme Court's Bostock decision, although lower courts vary in how broadly they apply it, particularly in harassment and facilities‑access cases.

A patchwork of federal, state and local protections

While federal guidance is in a period of transition, many states and municipalities expressly protect sexual orientation and gender identity. Several also impose harassment‑prevention training requirements and recognise strong anti‑harassment programmes as part of an employer's legal defence.

Accordingly, even though federal guidance has narrowed, employer obligations may remain broader under state or local law, creating a layered compliance environment.

Takeaway for employers

Despite the rescission of the 2024 Guidance, core obligations remain unchanged. Employers should:

• Continue to comply with federal anti‑discrimination laws.
• Recognise that Bostock remains binding Supreme Court precedent, though its application varies across jurisdictions.
• Ensure compliance with state and local laws, many of which provide broader protections.
• Maintain robust anti‑harassment policies and regular training, which remain best practice and may support legal defences.
• Monitor federal developments, including the BE HEARD Act and any new EEOC guidance.
• Be mindful of increased attention to majority‑group discrimination claims, following recent Supreme Court decisions.
• Track evolving EEOC interpretations, particularly regarding gender identity and access to facilities in federal employment settings.

By upholding clear policies, ensuring consistent application, and monitoring ongoing legal developments, employers can navigate a shifting regulatory landscape while maintaining inclusive and compliant workplace practices.