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On January 22, the Equal Employment Opportunity Commission (EEOC) voted to rescind the 2024 enforcement guidance on harassment. In summary, “Enforcement Guidance on Harassment in the Workplace” explained the legal standards and employer liability applicable to harassment claims. Significantly, those legal standards are the federal employment discrimination laws enforced by the EEOC. Recently, in mid-January, the EEOC board met as a quorum for the first time in nearly a year. At this meeting, it eliminated long-standing internal voting procedures to "fast-track" agency policies.
Overview of the Now Eliminated Harassment Enforcement Guidance
Notably, before 2024, the EEOC had not issued guidance on workplace harassment for a long time. However, notable changes in the law occurred that the agency felt needed to be addressed. These changes included:
- the Supreme Court’s decision in Bostock v. Clayton County;
- forming a Select Task Force on Harassment in the Workplace and issuing a detailed report setting forth its findings and recommendations; and
- the emergence of new issues, such as online harassment.
Specifically, the 2024 enforcement guidance updated, consolidated, and replaced five guidance documents issued between 1987 and 1999. According to the 2024 EEOC board, it would serve as a unified agency resource on EEOC-enforced workplace harassment law. Additionally, it reflected the EEOC’s consideration of any public input received after a draft of the guidance was posted for public comment in 2023.
The guidance also addressed how workplace harassment occurs. This is important amid the recent growth of virtual work environments and the increasing impact of digital technology and social media.
According to the EEOC, between fiscal years 2016 and 2024, over one-third of all workplace discrimination charges included harassment. Also, since fiscal year 2018, harassment has been alleged in over half of federal sector equal employment opportunity complaints.
Actions Taken Before the Removal of the Enforcement Guidance
Previously, the State of Texas and the Heritage Foundation (Plaintiffs) sued to enjoin the original 2024 guidance. According to Littler, the Plaintiffs argued that the guidance “was contrary to law, arbitrary and capricious, and in excess of the EEOC’s statutory rulemaking authority.” In May 2025, the U.S. District Court for the Northern District of Texas (Court) found in the Plaintiff’s favor. The Court concluded that the EEOC, in the guidance, illegally redefined the definition of “sex” as it applies to gender identity and sexual orientation. Consequently, the Court ordered that those sections be removed from the overall enforcement guidance. The EEOC complied with the ruling.
Final 2026 Guidance Rescission
Finally, it is important to note that the January 22 decision to eliminate the enforcement guidance goes beyond just the 2025 removal of mentions to “sex.” The 2-to-1 vote eliminates the entire document. As of this date, the agency has not announced whether it will replace the guidance with something new. The recission also means the elimination of the five guidance documents issued between 1987 and 1999 that previous EEOC boards used to create the 2024 guidance. The only news release from the EEOC discussing this development was from Chair Andrea Lucas, who stated:
“Rescinding this guidance does not give employers [a] license to engage in unlawful harassment. Federal employment laws against discrimination, harassment, and retaliation, and Supreme Court precedent interpreting those laws, remain firmly in place. The EEOC is committed to evenhanded enforcement of these laws. The agency will continue to be dedicated to preventing and remedying unlawful workplace harassment.”
Employer Takeaways
In conclusion, employers should note that this repeal has no legal effect. The enforcement guidance was drafted and released as a “non-binding” document. This means it does not carry the same legal obligations as a law. Employers, however, probably found the guidance useful for understanding how the EEOC would rule on workplace harassment and discrimination charges.
Lastly, even with the elimination, Title VII of the Civil Rights Act of 1964 remains the overarching anti-discrimination law employers must comply with. Additionally, state, federal, and local laws prohibit harassment and discrimination of employees, job applicants, and visitors based on certain protected traits. These traits include sex, gender, age, race, religion, national origin, pregnancy, or disability. Moreover, various court decisions and agency guidance have clarified that employers must take reasonable steps to prevent harassment and discrimination.
To assist employers in training workers on workplace harassment and discrimination, WorkWise Compliance created the Harassment & Discrimination Prevention Training eLearning Module for Employees. In addition to explaining harassment and discrimination, the training module describes how to prevent such actions and outlines ways to report complaints. For employers in California and New York, the following harassment and discrimination prevention trainings need to be utilized in addition to regular harassment training where appropriate:
