Photo Credit: Jose Luis Magana, Members of the 75 Million Coalition Rally Outside the Equal Employment Opportunity Commission Headquarters in Washington, D.C. (Jan. 22, 2026) (AP Photo), https://apnews.com/article/eeoc-harassment-workplace-gender-trump-lucas-lgbtq-0ac048763668ae4f8946aa26a3a6a907.
Authored by: Emily Harrison
On January 22, 2026, the U.S. Equal Employment Opportunity Commission (“EEOC”) voted to rescind its updated harassment guidance, originally issued in April 2024.[1] The majority vote (2-1) effectively removed the guidance as a resource for compliance, training, and enforcement of federal harassment law. News of the vote was met with a myriad of both support and controversy.
The EEOC approved its Enforcement Guidance on Harassment in the Workplace on April 29, 2024.[2] As the first update of its kind in over two decades, the guidance purportedly served as “a comprehensive resource that brings together best practices for preventing and remedying harassment and clarifies recent developments in the law,” according to then-EEOC Chair Charlotte Burrows.[3] Among other updates, it expanded prior discussions concerning color-based harassment under Title VII and harassment under the Genetic Information Nondiscrimination Act (“GINA”). Most significantly, the guidance interpreted harassment law to cover modern workplace issues concerning unlawful conduct based on sex as a protected characteristic in light of the Supreme Court’s decision in Bostock v. Clayton County.[4] There, the Supreme Court ruled that sex discrimination includes discriminatory conduct based on sexual orientation and gender identity.[5] But the guidance went further, stating that harassment based on sexual orientation or gender identity is likewise unlawful and identified examples of actionable conduct.[6] Such conduct included disclosing an individual’s sexual orientation or gender identity without permission (“outing”), intentionally using a pronoun or name inconsistent with the individual’s known gender identity (“misgendering”), or denying access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.[7]
Several factors appear to have motivated the vote to rescind the guidelines. In Texas v. EEOC, the State of Texas challenged the 2024 guidance under the Administrative Procedure Act.[8] The court held that portions of the 2024 guidance exceeded the EEOC’s statutory authority.[9] Although the guidance was a nonbinding interpretive document, not a legislative regulation, and the court viewed sections of the guidance as unauthorized substantive rulemaking by the EEOC, particularly in sections addressing gender ideology.[10] The 2024 guidance expanded the definition of “sex” beyond the “biological distinctions between male and female,” thus overstepping the agency’s statutory authority by effectively promulgating new policy in its LGBTQ-related provisions under the guise of interpretation.[11]
The recission occurred in the wake of another landmark Supreme Court decision regarding the deference courts should afford to an agency’s interpretation of the law.[12] Loper Bright Enterprises v. Raimondo overruled the long-standing ‘Chevron deference’ precedent that directed courts to rely on agency interpretations of the law where Congress is silent on the question at issue.[13] The Loper Bright Court characterized the Chevron decision as “a marked departure from the traditional approach” to statutory interpretation.[14] The judiciary bears the sole responsibility for statutory interpretation, and agency interpretations may only be valued for their persuasive authority.[15] Although courts never viewed EEOC enforcement guidance as binding authority, Loper Bright underscores the judiciary’s increasing skepticism toward expansive agency interpretations that go beyond the black letter law.[16]
Immediately after taking office in January 2025, President Trump issued an Executive Order titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which attacked the use of gender-ideological language in government documents, policies, and other communications.[17] It additionally directed the EEOC to rescind the 2024 harassment guidance.[18] Trump subsequently removed two of the then-Commissioners who publicly refused to comply,[19] leaving the EEOC without the requisite quorum to formally rescind the guidance.[20] Appointed in October 2025, new EEOC Commissioners Andrea R. Lucas and Brittany Panuccio formed a full quorum with a Republican majority who shortly thereafter voted to rescind the 2024 guidance without comment or public notice in January 2026.[21]
In the open session meeting, Commissioner Kalpana Kotagal, a Biden appointee who survived removal in the fallout of Trump’s Executive Order, dissented the decision to rescind the 2024 guidance.[22] She lamented the loss of the 2024 guidance that “pull[ed] back the curtain on modern-day harassment, which is too often shrouded in secrecy, by highlighting more than 75 practical examples rooted in case law.”[23] Taking the court’s logic in Texas v. EEOC to mean that the guidance was a substantive rule, she argued that rescinding it without notice or comment violated the procedural regulations under the Administrative Procedure Act.[24] Commissioner Kotagal also criticized the decision to rescind the guidance in full, rather than adopting a more “thoughtful and surgical” approach to alter the sections of the 190-page document, because the rescission leaves employers and employees with no agency guidance to rely upon for explanations of current harassment law.[25] With no opportunity for public comment, Commissioner Kotagal took the opportunity to voice concern on behalf of employees “who will be hurt by this rescission.”[26]
The majority then discussed their reasoning, citing the case law precedent in Texas v. EEOC and the Executive Order mentioned above. While the EEOC does have substantive rulemaking authority under the ADA, the ADEA, and GINA, the EEOC does not possess that authority for Title VII.[27] EEOC Chair Lucas shared that the EEOC “can protect women by enforcing the law,” but it cannot protect women through promulgating unauthorized substantive regulations.[28]
Important to note, the recission did not affect the current state of federal harassment law. Harassment in the workplace based on race, color, religion, sex, and national origin remains prohibited under federal law.[29] The Supreme Court’s ruling in Bostock remains intact, and the recission did not affect any other existing case law precedent.
The recission did, however, revoke a tool previously available to plaintiffs to rely upon in supporting modern harassment theories, particularly those tied to sexual orientation and gender identity. Since the recission, employees may no longer misplace reliance on such expansive administrative interpretations of law: when alleging harassment claims such as misgendering or outing, employees must only rely on statutory text and judicial precedent rather than citing to examples from interpretive agency documents. While the recission may not affect the overall viability of Title VII harassment claims, the absence of any guidance from the EEOC likely will present challenges for plaintiffs in alleging unlawful conduct that has yet to be addressed in certain jurisdictions. Employers may have an advantage in these instances without clear textual support.
The EEOC has not indicated whether it intends to replace the harassment guidance.
[1] Press Release, U.S. Equal Emp. Opportunity Comm’n, EEOC Commission Votes to Rescind 2024 Harassment Guidance (Jan. 23, 2026) https://www.eeoc.gov/newsroom/eeoc-commission-votes-rescind-2024-harassment-guidance.
[2] U.S. Equal Emp. Opportunity Comm’n, Enforcement Guidance on Harassment in the Workplace, No. 915.064 (Apr. 29, 2024) (rescinded Jan. 22, 2026).
[3] Press Release, U.S. Equal Emp. Opportunity Comm’n, EEOC Releases Workplace Guidance to Prevent Harassment (Apr. 29, 2024) https://content.govdelivery.com/accounts/USEEOC/bulletins/399693c.
[4] 590 U.S. 644 (2020).
[5] Id.
[6] EEOC, Enforcement Guidance on Harassment in the Workplace, § I(A)(5)(c).
[7] Id.
[8] 785 F. Supp. 3d 170 (N.D. Tex. May 15, 2025).
[9] Id.
[10] Id. at 188-89 (quoting Bostock at 655).
[11] Id.
[12] Loper Bright Enter. v. Raimondo, 603 U.S. 369, 396 (2024).
[13] Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984); see also Smiley v. Citibank, 517 U.S. 735, 740-41 (1996) (“Congress, when it left ambiguity in a statute meant for implementation by an agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.”).
[14] Loper Bright Enter., 603 U.S. at 396.
[15] Id. at 400-01 (see Skidmore v. Swift & Co., 323 U.S. 134 (1944) (ruling that agency interpretations may bear persuasive weight proportional to their persuasive power).
[16] Id.
[17] Exec. Order No. 14168, 90 Fed. Reg. 8615 (Jan. 20, 2025).
[18] Id.
[19] See Goldstein and Steel, Trump Fired E.E.O.C. Commissioners in Late-Night Purge, The New York Times (Jan. 28, 2025) https://www.nytimes.com/2025/01/28/business/trump-eeoc-commissioners-fired.html (detailing the then-Commissioners Burrows and Samuels removal, and also discussing the removal of the then-General Counsel of the EEOC which occurred in the same action).
[20] See The State of the EEOC: Frequently Asked Questions, U.S. Equal Emp. Opportunity Comm’n, https://www.eeoc.gov/wysk/state-eeoc-frequently-asked-questions (Jan. 28, 2025) (describing the procedure for publication and recission of EEOC-issued guidance).
[21] Press Release, U.S. Equal Emp. Opportunity Comm’n, Brittany Bull Panuccio Begins Tenure as EEOC Commissioner (Nov. 17, 2025) https://www.eeoc.gov/newsroom/brittany-bull-panuccio-begins-tenure-eeoc-commissioner.
[22] U.S. Equal Emp. Opportunity Comm’n, Transcript of Open Meeting (Jan 22. 2026), https://www.eeoc.gov/meetings/meeting-january-22-2026/transcript.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] 42 U.S.C. § 2000e-2(a)(1) (2022); EEOC Press Release, supra note 1.
American Journal of Trial Advocacy 