On April 29, 2024, the EEOC published its Enforcement Guidance on Harassment in the Workplace – the first update to the agency’s harassment guidance since 1999. The guidance replaced five prior guidance documents issued between 1987 and 1999 and was approved by a partisan 3-2 vote. The guidance was a sweeping, roughly 90-page document that addressed harassment across every protected characteristic under federal EEO law.
The next year, on January 28, 2025, EEOC Acting Chair Andrea Lucas rolled back much of the EEOC’s Biden-era guidance related to gender identity discrimination and harassment, aligning with President Trump’s Executive Order 14168 signed on Inauguration Day. However, Lucas could not formally rescind guidance that had been previously approved by a majority vote of the Commission, and she was limited to removing certain materials from the EEOC’s internal and external websites and other public documents. At that time, the EEOC lacked a quorum, so a formal rescission vote was not possible.
Along the way, the State of Texas and the Heritage Foundation sued to enjoin the guidance, arguing it was contrary to law, arbitrary and capricious, and in excess of the EEOC’s statutory rulemaking authority. In the case of Texas v. Equal Employment Opportunity Commission, No. 2:24-CV-173 (N.D. Tex. May 15, 2025) a federal district court in Texas agreed, and struck down portions of the 2024 guidance addressing bathroom, dress, and pronoun accommodations, finding the EEOC had exceeded its statutory authority by expanding the definition of “sex” beyond the biological binary.
Following up on the announced Andrea Lucas roll back, on January 22, 2026, the EEOC officially voted 2-1 along party lines to formally rescind its 2024 Enforcement Guidance on Harassment in the Workplace in its entirety. Chair Lucas and Commissioner Brittany Panuccio (confirmed in October 2025, restoring the quorum) voted for rescission, while Democratic Commissioner Kalpana Kotagal dissented.
It had been anticipated that the EEOC might limit the rescission to portions addressing sexual orientation and transgender status, but the Commission voted to rescind the guidance in its entirety – including sections on race, color, pregnancy, disability, and other protected categories that were largely uncontroversial. Some employment law commentators have theorized that the Trump EEOC chose a complete rescission because it would be easier than making piecemeal edits, and that any replacement guidance might emphasize religious-based harassment and so-called “reverse” harassment.
The rescission does not amend Title VII itself or overturn existing Supreme Court precedent, including the Bostock v. Clayton County, Georgia, 590 U.S. 644 (2020) decision holding that Title VII prohibits discrimination based on sexual orientation and gender identity.
The guidance was nonbinding and provided stakeholders with information on how the EEOC planned to enforce the law – it did not change employers’ underlying legal obligations. Employees can still pursue harassment claims, courts interpret the law independently, and state and local anti-discrimination laws remain unaffected.
California’s primary anti-discrimination and anti-harassment statute is the Fair Employment and Housing Act (FEHA), codified at Government Code § 12900 et seq. FEHA is one of the most expansive employment civil rights laws in the nation, and it operates entirely independently of the EEOC’s guidance. The EEOC’s rescission does not alter any California employer’s obligations under FEHA.
FEHA does not rely on judicial interpretation to extend protections to gender identity and sexual orientation – they are expressly listed in the statute. California law prohibits workplace discrimination and harassment based on gender identity, gender expression, sexual orientation, marital status, sex/gender (including pregnancy, childbirth, breastfeeding and related medical conditions), reproductive health decisionmaking, race (including traits associated with race, such as hair texture and hairstyle), religion (including religious dress and grooming practices), national origin, age, disability, medical condition, genetic information, military or veteran status, and other protected characteristics.
The consensus among employment law practitioners is that while the federal enforcement landscape has shifted significantly, employers should not treat the rescission as a green light to relax their anti-harassment programs.
The rescission has prompted federal lawmakers to introduce legislation – such as the BE HEARD Act of 2026 – that would amend Title VII to expressly include sexual orientation, gender identity, sex stereotypes, sex characteristics, and pregnancy in the definition of sex.
In practical terms, employment lawyers advising California employers are counseling them to maintain their existing anti-harassment policies, training programs, and complaint procedures without any weakening in response to the EEOC’s action – because California law independently requires everything the EEOC guidance recommended and more.