Labor & Employment Law Daily Wrap Up, EEOC NEWS—Commission votes to rescind 2024 enforcement guidance on harassment in the workplace, (Jan 23, 2026)

By Brandi O. Brown, J.D.

Chair Andrea Lucas accused those raising concerns about the rescission of “fearmongering” while Commissioner Kotagal accused the agency of throwing out, wholesale and unnecessarily, guidance that was 10 years in the making and subject to nearly 38,000 public comments.

Yesterday, the three members of the EEOC commission met to discuss rescission of a 2024 Enforcement Guidance on Harassment in the Workplace, among other matters that ended up being handled by a notational vote.

The Enforcement Guidance on Harassment in the Workplace, which among many other things clarified workplace protections available for harassment based on sexual orientation and gender identity, was approved by the Commission on April 29, 2024. At the time, Commissioner Lucas voted against it. In May 2025, Judge Matthew J. Kacsmaryk of the Northern District of Texas declared unlawful and vacated certain portions of the document, contending that “Title VII remains rooted in a biological understanding of sex” and “does not require employers or courts to blind themselves to the biological differences of men and women.”

Lucas, on multiple occasions since the beginning of her tenure as chair, has made clear that the guidance was in her crosshairs. Upon her appointment, she stated, “Consistent with the President’s Executive Orders and priorities, my priorities will include... defending the biological and binary reality of sex and related rights, including women’s rights to single sex spaces at work....” Next, the EEOC released an announcement entitled “Removing Gender Ideology and Restoring the EEOC’s Role of Protecting Women in the Workplace,” within which Lucas’s plan to “return” the agency “to its mission of protecting women from sexual harassment and sex-based discrimination in the workplace by rolling back the Biden administration’s gender identity agenda” was outlined. With the confirmation of Brittany Bull Panuccio, the EEOC had the quorum to allow Lucas’s plans to move forward.

Meeting held. Chair Lucas started off the meeting, announced last week, with attempts to quell concerns already being raised about the rescission effort, claiming that no void will be created and no changes in rights will occur as a result, because the EEOC could not create new rights to begin with. “Confusion and, frankly, fearmongering about this undisputed point is unhelpful and is wrong,” she said.

When her turn came to talk, Commissioner Panuccio echoed Lucas’s claims that the agency will continue to consider and process harassment claims. She seconded Lucas’s motion to rescind.

Lone supporter of guidance. Commissioner Kalpana Kotagal spoke passionately in favor of the 2024 guidance, explaining the impact of workplace harassment and its persistence, and arguing that it provided comprehensive guidance and clarity regarding harassment and liability based on its considerable expertise, guidance that had been lacking for 25 years. “Critically,” she explained, “the guidance provides information to workers so that they can know their rights.” It also enables employers, particularly small businesses, to know their responsibilities.

“It pulls back the curtain on modern-day harassment which is too often shrouded in secrecy,” she explained, by providing so many examples. “It uplifts the experiences of some of the most marginalized workers,” she noted, “including survivors of gender-based violence, pregnant workers, immigrants, individuals with intellectual and developmental disabilities, and more.”

What about Bostock? She also emphasizes that the guidance reflected important developments in the law, including the Supreme Court’s recognition in Bostock v. Clayton County that discrimination based on sexual orientation or gender identity is a form of sex discrimination. She also noted that it was a document that was “10 years in the making,” sent out twice for public comment in 2017 and 2023 and receiving nearly 38,000 comments.

“I’m deeply disappointed that the agency is poised to rescind the harassment guidance today, in full, without public notice and comment,” she concluded, complaining that the commission is “throwing out the baby with the bathwater” and doing so “without public input.” This will leave the public and staff without any guidance on the issue for the first time in 40 years.

Discussion. After the motion was made and seconded, “discussion” was had by the three commissioners, with many of the same arguments considered. Lucas focused on the EEOC’s authority, or purported lack thereof, to promulgate substantive, rather than procedural, rules. She stated her belief that the EEOC lacked authority to create the guidance in the first place and argued that two wrongs do not make a right. Panuccio added her own experience as a young, female rape survivor working at a gym and walking into a locker room for women when she allegedly “saw a man.” She said she never felt comfortable going back into the women’s locker room at her workplace again.

The motion to adopt a rescission order regarding the guidance passed by a vote of two to one. The resolution concerning the commission’s authority to commence or intervene in litigation was approved two to one, by a notation vote. The third item—obligation of funds requiring commission approval—was similarly approved by a vote of two to one.

Audio from the open meeting is available here.

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