What Employers Must Know on EEOC’s Harassment Guide Rescission

The Equal Employment Opportunity Commission voted 2-1 on Jan. 22 to rescind its Enforcement Guidance on Harassment in the Workplace. The guide, originally approved in 2024, provided employers with insight into the EEOC’s interpretations of statutes and what it deemed to be potential areas and scenarios that could be considered unlawful harassment.

Its rescission means employers will no longer have access to a centralized reference point for the EEOC’s interpretation of what could constitute a potential violation. Employers should consult with an employment law expert that can help guide the employer on possible pitfalls to avoid.

Previous Action

The guide formalized the EEOC’s position on the legal standards and employer liability under federal antidiscrimination laws. It also addressed interpretations of anti-harassment laws regarding protected classes of sexual orientation and harassment against LGBTQ+ individuals.

The genesis of the guide began in 2020 to assist employers with understanding their obligations under the then-recently decided US Supreme Court case of Bostock v. Clayton County, Georgia, which prohibited employers under Title VII of the Civil Rights Act of 1964 from making hiring or termination decisions as to employees or applicants based on their gender identity (including transgender status) or sexual orientation as unlawful sex discrimination.

The commission issued a 2021 “technical assistance” document that was intended to clarify what the Bostock decision meant for LGBTQ+ workers and all covered workers and employers nationwide. Texas then challenged the 2021 guidance document, and the court vacated the guidance as unlawful in October 2022.

In 2024, the EEOC issued the harassment guide. A federal court in Texas later vacated portions of the guidance in May 2025, particularly the portions related to sexual orientation and gender identity, finding that the EEOC had exceeded its authority.

The Rescission

When the commission rescinded the harassment guide last month in its entirety, Chair Andrea Lucas noted, prior to voting in favor of the rescission, that should the commission choose to rescind the guide, it would “not leave a void where employers are free to harass wherever they see fit, leaving a trail of victims in its wake.” Lucas maintained that the “EEOC will not tolerate unlawful harassment.”

Lucas described the guide as providing an interpretation of Title VII that the federal agency lacked the authority to issue.

“Title VII only provides the EEOC with the authority to issue procedural regulations—basically, quote unquote, ‘procedural regulation,’ not substantive regulations,” Lucas said. “[W]e cannot make affirmative statements of policy interpreting Title VII.”

Commissioner Brittany Panuccio, who also voted to rescind the guidance, maintained that workplace harassment that violates the laws (i.e., Title VII, ADA, ADEA, GINA, and PWFA) remains a violation of those laws—with or without the guidance.

Commissioner Kalpana Kotagal, the singular vote against recission, argued that the guide provided a comprehensive guidance that clarified the legal standards for harassment claims and employer liability. Kotagal asserted that the guide provided information to workers and employers, especially small businesses, to help them know their responsibilities. In stating that the commission is “throwing out the baby with the bathwater,” Kotagal requested that the EEOC allow public notice and comment prior to rescinding the guidance.

Moving Forward

The rescission of the guide doesn’t mean an end to employers’ workplace obligations or to potential exposure from discrimination claims. Title VII and its corresponding legal standards and applications remain in place.

However, employers will no longer have access to a centralized document providing insights into the EEOC’s interpretation of what constitutes violative behavior. Employers will need to make certain they have the safeguards in place to ensure knowledge and compliance with the host of federal, state, and local laws governing prohibited workplace actions and practices.

Consultation with experienced employment law experts is a key component to knowing your rights and obligations. An employment law expert may assist in reviewing employers’ current policies to ensure compliance with the most recent legal standards for harassment. Additionally, an expert will be able to provide training that will educate management level employees on best practices used to mitigate the risk of potential pitfalls.

The rescission shows that labor and employment law and regulations are continuing to evolve in today’s climate. Given the changes, it’s imperative for employers to stay abreast of all recent laws as new developments may emerge over the next couple of years.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Shari Ohri is of counsel in the employment & labor practice at Wilson Elser, and previously was a senior attorney advisor for the US Department of Homeland Security.

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