EEOC Rescinds Its 2024 Publication on Harassment in the Workplace: The Guidance Has Changed; the Law Has Not

On January 22, 2026, the Equal Employment Opportunity Commission (EEOC) voted 2-1 to rescind its 2024 "Enforcement Guidance on Harassment in the Workplace." Among other topics, the 2024 guidance provided an anecdotal checklist to employers for addressing federal claims relating to harassment based on sexual orientation and gender identity.¹

Now that the guidance has been rescinded, employers and in-house teams are left without a clear roadmap for flagging and investigating these issues. While the EEOC affirmed that this rescission does not permit unlawful harassment and that the Commission remains committed to preventing and remedying workplace harassment, employers now have less clarity about how the EEOC will determine Title VII violations and enforce federal claims of harassment based on sexual orientation and gender identity.

The loss of the 2024 guidance may also leave a void regarding how the EEOC would evaluate all other forms of harassment. For context, before the EEOC issued its 2024 guidance, the agency had not updated its guidance on workplace harassment since 1999's "Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors." Curiously, the EEOC has now removed the 2024 guidance from its website, but the 1999 guidance remains accessible—albeit with a disclaimer that it was superseded by the (now-defunct) 2024 guidance.

The Commission has not officially resurrected the 1999 guidance or given any indication of its current validity. Regardless, this older document offers no insight on the various major legal developments that have reshaped the legal landscape since 1999.

Despite these uncertainties, the rescission of the 2024 guidance has not resulted in any actual changes in the current federal law itself, and workplace discrimination based on sexual orientation and gender identity remains unlawful sex discrimination under Bostock v. Clayton County, Georgia.² Further, harassment remains illegal if it is severe or pervasive enough to create a hostile work environment—even if the EEOC's opinion about when conduct actually rises to that level is more nebulous without the detailed 2024 interpretive examples.

Since employers' underlying obligations under federal law remain unchanged, companies should maintain comprehensive employment policies with respect to harassment of all types, including harassment based on sexual orientation and gender identity. And employers can still look to the legal cases cited in the 2024 guidance for assistance in understanding the current state of the law when investigating these claims, as those judicial opinions remain binding authority.

Further, while there is no longer a federal roadmap from the EEOC, California's protections against discrimination and harassment in the workplace remain robust and unambiguous. Both the Fair Employment and Housing Act (FEHA) and the Unruh Civil Rights Act strictly prohibit harassment and discrimination based on sexual orientation, gender identity, and gender expression. Also, the California Civil Rights Department (CRD) has issued guidance specifically outlining harassment, discrimination, and retaliation protections for all workers (employees, job applicants, unpaid interns, volunteers, and contractors), including with respect to sexual orientation and gender identity.

Zooming out, the practical impact of the 2024 guidance rescission is still developing, and time will tell how the agency chooses to prioritize, investigate, and pursue allegations of harassment based on sexual orientation and gender identity going forward. In the meantime, employment counsel can help employers navigate the current landscape and institute best practices and policies to avoid running afoul of the EEOC's now somewhat-mysterious enforcement standards.