On January 22, 2026, the U.S. Equal Employment Opportunity Commission (“EEOC”) rescinded by vote its April 2024 Enforcement Guidance on Harassment in the Workplace.  The rescission eliminated the guidance in full, without a notice and comment period, signaling a landmark recalibration of the EEOC’s approach to harassment enforcement.

As Proskauer previously covered, alongside discussion regarding harassment based on protected characteristics such as race, religion, age, and disability, the guidance extended broad protection for LGBTQ+ employees against harassing conduct based on sexual orientation and gender identity.  The guidance provided that harassing conduct on the basis of these categories may include “outing (disclosure of an individual’s sexual orientation or gender identity without permission); … repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.”  

This move from the EEOC is the latest step as the agency continues to build upon its previously announced enforcement priorities, including “defend[ing] the biological and binary reality of sex and related rights.”    Moreover, in May 2025, a federal judge already struck portions of the guidance which addressed sexual orientation and gender identity discrimination, aligning with the Trump Administration’s directive to enforce the binary sex mandate and limit the scope of the U.S. Supreme Court’s 2020 ruling in Bostock v. Clay County, in which the Court held that Title VII of the Civil Rights Act of 1964’s prohibition on discrimination “on the basis of sex” includes discrimination on the basis of sexual orientation and gender identity.

Takeaways

Despite the rescission, Title VII’s statutory mandates and the Supreme Court’s ruling in Bostock remain unchanged.  Employers also must be mindful of applicable state and/or local laws that prohibit discrimination based on sexual orientation and gender identity or expression.

We anticipate further updates in this area as the EEOC and other civil rights agencies continue to move forward with their enforcement efforts and will continue to monitor and report on these updates.