February 2, 2026 – On January 22, 2026, the EEOC commissioners voted 2-1 to rescind the agency’s 2024 Enforcement Guidance on Harassment in the Workplace (“2024 Guidance”) – which had provided the agency’s position for identifying, preventing, and responding to workplace harassment, particularly the harassment of LGBTQ+ workers – after finding that the 2024 Guidance exceeded the agency’s rulemaking authority. Notably, the 2024 Guidance had stated that “repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering)” or “denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity” could be considered a form of sexual harassment. The decision to rescind the 2024 Guidance comes shortly after President Trump issued Executive Order 14168, entitled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which directed all agencies to “remove all statements, policies, regulations, forms, communications, or other internal or external messages that promote or otherwise inculcate gender ideology…”

Notably, this repeal will not alter statutory protections against discrimination, harassment, or retaliation. Title VII’s ban on sex discrimination still applies, and the Supreme Court’s Bostock v. Clayton County decision — holding that discrimination because of sexual orientation or gender identity is unlawful sex discrimination — remains the law. The rescission does not change caselaw interpreting the statute, which continues to protect LGBTQ+ employees from discriminatory terminations or other adverse employment actions, and harassment that is sufficiently severe or pervasive. Additionally, state and local laws remain in force and may afford broader protection than federal law.

The EEOC has not disclosed if it will publish more guidance; however, it noted that rescinding the guidance does not mean the agency will cease investigating or litigating harassment claims. Employers should stay alert to updated EEOC guidance and court rulings that may further alter the legal landscape.

Best Practices for Employers

1. Employers should continue to ensure compliance with Title VII as interpreted by courts, including the Supreme Court in Bostock. The absence of administrative guidance means more reliance on judicial decisions, state and/or local laws and regulations.
2. Revisit internal harassment and non-discrimination policies to ensure that they are aligned with current judicial precedent and state/local guidelines, and consider training that reflects current binding precedent where you do business.
3. Employers doing business in several states should maintain an internal guide of applicable state and local rules to ensure multijurisdictional compliance.
4. Evaluate gender-based requests for accommodation on a case-by-case basis, considering current laws and guidelines.
5. Continue to enforce prompt investigations and documentation when handling complaints of sexual and gender-role harassment.

If you have any questions about this development or how it might impact your company’s existing policies and procedures, please do not hesitate to contact the Kullman attorney with whom you work.