On January 22, 2026, the Equal Employment Opportunity Commission (EEOC) voted 2-to-1 to rescind the harassment guidance issued under the Biden administration. The EEOC submitted the rescission as final to Office of Management and Budget (OMB) for its approval on December 29, 2025, without public notice and comment.
Harassment Guidance Issued in 2024
On April 29, 2024, the EEOC issued its final harassment guidance, updating the previous version with Bostock, #MeToo, and remote work issues. The most controversial guidance involved broad LGBTQ+ protections—especially for transgender employees—which the EEOC at the time believed was a natural extension of the Supreme Court’s Bostock decision. Specifically, the guidance cited denial of access to a bathroom consistent with an individual’s gender identity and repeated misgendering of an individual or harassment of an individual because they don’t meet stereotypical standards associated with their gender. Current EEOC Chair Andrea Lucas, who was a commissioner at the time, objected to the harassment guidance on gender identity as beyond the Supreme Court’s decision in Bostock.
Trans Guidance Blocked by Court
A federal district court in Texas on May 15, 2025, vacated the gender identity portions of the guidance, ruling that the EEOC exceeded its statutory authority by expanding the definition of sex under Title VII of the Civil Rights Act of 1964 “beyond biological binary.” The court noted that when the Supreme Court in Bostock decided discrimination based on homosexual or transgender status can constitute sex discrimination under Title VII, it assumed without deciding that sex in Title VII refers “only to biological distinctions between male and female.”
The court interpreted Bostock narrowly, saying that only firing someone based on homosexuality or transgender status violated Title VII’s prohibition on sex discrimination because “discrimination based on homosexuality or transgender status necessarily entail discrimination based on [biological] sex.” The Supreme Court in Bostock specifically stated the decision didn’t address “bathrooms, locker rooms, or anything else of the kind.” The district court decision aligned with President Trump’s January 21, 2025, Executive Order 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.
Former EEO Leaders Object to Rescission of Guidance
In response to the proposed rescission, a group of former EEO leaders from the EEOC and the Department of Labor (DOL) issued a statement saying the guidance provided employers and employees with “concrete, practical information about how to prevent and redress harassment at work.” The statement made the point that rescission of the guidance won’t alter the binding precedent the administration is required to follow, including Bostock.
The group issued an additional statement after the EEOC scheduled the public hearing to rescind the guidance:
By downplaying the current law prohibiting workplace harassment and eliminating the agency’s extensive guidance on how to comply, this action invites an increase in the amount of harassment that occurs in workplaces across the country.
The statement goes on to note that more than 40% of the charges filed in fiscal year 2024 include a harassment claim. The statement says the failure to provide harassment guidance to employers and employees is likely to increase harassment and concludes that to do so without public comment is “an abdication of the agency’s obligation to engage in deliberative decision making, as reflected in the agency’s own procedural rules.”
Chair Lucas Pushes Back on Objections
Chair Lucas claimed the current harassment guidance was endangering women by directing employers to let people use work facilities that correspond with their gender identity. She pushed back on the notion that workplace harassment will increase if the guidance was scrapped, saying employees don’t lose their rights or remedies. In addition, she condemned the “confusion and fearmongering” about the void left in the guidance’s wake.