On January 22, the Equal Employment Opportunity Commission (EEOC) voted 2-1 along party lines to rescind its “Enforcement Guidance on Harassment in the Workplace.”
The guidance was a comprehensive overview of employers’ obligations under federal civil rights laws to prevent and address discrimination or harassment in the workplace. In 2024, the EEOC, under President Biden, updated the guidance following the Supreme Court’s Bostock v. Clayton County decision, specifying that federal civil rights laws protect against discrimination based on sexual orientation and gender identity. In May 2025, a Texas federal judge vacated portions of the guidance nationwide, arguing that the expanded definition of “sex” ran contrary to federal law.
The EEOC has rescinded the guidance document in its entirety, not just the updated section. The EEOC chose not to provide a public comment period, despite a request from Democratic Commissioner Kalpana Kotagal and assurances the EEOC made to the Texas federal court that it would provide an opportunity for stakeholders to weigh in. EEOC Chair Andrea Lucas said the guidance was exempt from the Administrative Procedures Act and therefore could be withdrawn without notice and comment.
Chair Lucas clarified that employers will still be held accountable for any workplace discrimination, even after the guidance document is rescinded. It remains to be seen if the EEOC will issue a new guidance document on workplace harassment, return to the pre-2024 version of the guidance, or pursue a different avenue altogether.
Please note that the EEOC’s guidance provides stakeholders with information on how the EEOC plans to enforce the law. While understanding the EEOC’s position is useful to stakeholders, the guidance does not change employers’ obligations under anti-harassment law or state civil rights laws as set forth in existing court decisions. For example, while the EEOC may choose not to use resources to bring certain types of claims, employers could still face suits filed by employees, former employees and applicants. Please consult your legal counsel regarding this action by the EEOC and how it might impact your policies and procedures.
CUPA-HR will keep members apprised of further updates from the EEOC.