On January 22, the Equal Employment Opportunity Commission (EEOC) voted 2–1 to rescind its 2024 Enforcement Guidance on Harassment in the Workplace, No. 915.064, an almost 200‑page document that consolidated decades of agency positions and practices for preventing and correcting harassment.
The Republican majority—Chair Andrea Lucas and Commissioner Brittany Panuccio—approved the rescission over the dissent of Commissioner Kalpana Kotagal. While the guidance was nonbinding, employers across industries had relied on it for clarity on Title VII standards, modern forms of harassment and the agency’s views following the Supreme Court’s decision in Bostock v. Clayton County. The rescission also triggered the revival of the previously introduced BE HEARD Act and set the stage for subsequent litigation involving the EEOC.
Timeline and Purposes of the Rescission
The 2024 guidance was the EEOC’s first update of the document since 1999. Not long after its release in April 2024, President Donald Trump took office, and his January 20, 2025, Executive Order 14168—Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government—called for a rescission of the 2024 guidance.
On January 22, the EEOC commissioners rescinded the 2024 guidance without a 30-day notice-and-comment period for the following reasons: (1) President Trump’s instruction in Executive Order 14168; (2) a federal district court in Texas’s vacatur of portions of the 2024 guidance addressing sexual orientation and gender identity, concluding the agency exceeded its authority in certain applications post-Bostock, such as pronoun usage and bathroom access; and (3) an interpretation that the 2024 guidance constituted an impermissible legislative rulemaking.
Dissenting Commissioner Kotagal warned that the move discards widely accepted best practices and leaves employers and workers without a clear, unified reference point, particularly on training, complaint procedures, and addressing emerging forms of workplace misconduct. Worker and civil rights groups criticized both the substance and the process, noting the years-long development of the 2024 guidance and substantial public input behind it.
Developments Since the Rescission
Changes were made to the EEOC’s Harassment webpage removing the 2024 guidance and adding a banner that reads, “The information on this webpage is being reviewed for compliance with the law and executive orders and will be revised.” The rescission also prompted a legislative response seeking to counteract the effect of the rescission, an administrative decision exemplifying the EEOC’s new perspective, and a callout in a complaint filed by a former EEOC employee.
Congressional Response: The BE HEARD Act
On February 12, members of Congress reintroduced the Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace Act (BE HEARD in the Workplace Act), which was previously introduced in 2019 in response to the #MeToo movement of 2017.
The BE HEARD Act would amend Title VII to expressly include “sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions” within the statutory definition of “sex.” The BE HEARD Act would also ban mandatory arbitration and pre-employment nondisclosure agreements, allocate funding toward education and prevention, prompt research of the economic and other societal consequences of workplace harassment, and apply to independent contractors.
If enacted, this legislation would represent the most significant amendment to Title VII since the Lilly Ledbetter Fair Pay Act of 2009 and would codify protections that supporters argue were implicit in the Bostock decision. The legislation faces an uncertain path forward given the current Republican majority in Congress. As of May 2026, neither the House version (H.R. 7583) nor the Senate companion (S. 3865) has advanced beyond referral to committee.
2026 Case Developments
At the end of February, the EEOC rendered a decision in Selina S. v. Daniel Driscoll, Secretary, Department of the Army, EEOC Appeal No. 2025003976 (February 26, 2026), holding that federal employers may utilize single-sex bathrooms and disallow trans employees from using a bathroom that comports with their gender identity but not biological sex. The case stemmed from an Army IT specialist at Fort Riley in Kansas who was born male but identifies as a woman and was denied permission to use bathrooms and locker rooms designated for females. Her complaint was dismissed by the Army, and she appealed to the EEOC, which affirmed the Army’s dismissal.
The EEOC’s decision opened with a citation of Executive Order 14168, reading, “It is the policy of the United States that ‘intimate spaces [in federal workplaces] … are designated by sex and not identity.’” The EEOC went on to explain that the “intimate spaces” issue raised in this case had not yet authoritatively been addressed by any federal court, taking special care to point out that the Supreme Court in Bostock “‘d[id] not purport to address bathrooms, locker rooms, or anything else of the kind.’” Further, the EEOC confirmed that its decision was limited in that it would not apply to private employers or bind federal courts.
The Selina S. decision has already been invoked as persuasive authority in Withrow v. United States of America, Case No. 1:25-cv-04073-JMC (D.D.C. Nov 20, 2025). The government’s March 2026 motion to dismiss relies on the EEOC’s reasoning that Title VII does not “require an employer to create an exception to an otherwise sex-neutral rule concerning bathroom usage.” The court’s eventual ruling may shape the trajectory of future Title VII litigation in this area.
The rescission of the 2024 guidance was also briefly mentioned in Seawright v. Lucas, Case No. 3:26-cv-03444 (N.D. Cal. Apr 23, 2026), a recent matter brought by the former queer, transgender man serving as the EEOC’s Director of Information Governance and Strategy against EEOC Chair Andrea Lucas, alleging her “zealous implementation of President Trump’s Executive Order 14168” created a hostile work environment for him and others. Seawright listed the Executive Order’s direction to rescind the 2024 guidance as one example of how he believes the “anti-transgender order . . . serves a broader political agenda and Lucas’s own mission to undermine and dismantle federal civil rights law.” Seawright’s complaint has yet to be answered.
Practical Implications for Employers
The rescission of the 2024 guidance does not alter the underlying law. Per Bostock, which has not been overturned, workplace discrimination based on homosexuality or transgender status is discrimination on the basis of sex in violation of Title VII. Further, Title VII and other federal antidiscrimination statutes still prohibit harassment based on protected characteristics. And, state and local laws, many of which expressly prohibit discrimination on the basis of gender identity and expression, remain in force.
To this point, some argue the 2024 guidance was rescinded merely to make a statement about the current administration’s gender politics. Regardless, employers can expect elevated compliance costs associated with synthesizing case law and varying state rules. Additionally, employers may see an uptick in forum shopping for private litigation brought by both employees who feel more comfortable complaining about transgender coworkers, and transgender employees, such as Seawright, who feel discriminated against or harassed.
The EEOC has not yet indicated when, or if, it will issue narrower replacement guidance that addresses areas of broad consensus while leaving contested questions to the courts. Employers should monitor for replacement or narrower EEOC guidance and subsequent court activity that refines the law. In the meantime, disciplined prevention, prompt investigations, and careful documentation are more important than ever.
Tim Garrett is a member at Bass, Berry & Sims in Nashville, Tennessee. He helps employers solve complex issues related to all aspects of labor and employment law, providing in-depth counseling and developing creative solutions to underlying business issues. Tim can be reached at tgarrett@bassberry.com.
Tori Kline is an associate at Bass, Berry & Sims in Nashville, Tennessee. She represents employers in a range of labor and employment law matters, focusing her practice on issues arising throughout the course of mergers and acquisitions. She can be reached at tori.kline@bassberry.com.
The authors would like to thank summer associate Will McDonald for his contributions to this article.