Labor & Employment Law Daily Wrap Up, EXPERT INSIGHTS—The EEOC rescinded its harassment guidance—so how does this affect employers?, (Feb 23, 2026)
Law Firms Mentioned:Pender & Coward
Organizations Mentioned:Pender & Coward, PC | U.S. Equal Employment Opportunity Commission
By Jeffrey D. Wilson of Pender & Coward
In January 2026, the U.S. Equal Employment Opportunity Commission (EEOC) voted to rescind its 2024 Enforcement Guidance on Harassment in the Workplace. For many employers, the headline raised an obvious question: Does this change what we're supposed to do about harassment complaints?
The short answer is no.
What changed is the EEOC's internal enforcement playbook. What did not change are the laws that govern workplace harassment - and the litigation risks that flow from them. For small and mid-sized businesses, the fundamentals of managing harassment complaints remain just as important as they were before the rescission.
What the EEOC Actually Changed
The 2024 guidance was the EEOC's first comprehensive update on harassment in more than twenty years. It was intended to reflect how harassment claims were being evaluated in modern workplaces.
Among other things, it emphasized that unlawful harassment could arise not only from obvious misconduct, but from repeated low-level behavior (microaggressions), workplace "culture," and cumulative patterns over time. It focused heavily on emails, texts, internal messaging platforms, and social media, making clear that off-site or after-hours communications could still create liability.
The guidance also took an expansive view of employer responsibility. It stressed that businesses could be liable for harassment by customers, vendors, and contractors if they failed to respond appropriately. It placed particular emphasis on gender identity and related issues, including pronoun usage and access to facilities. It also warned that certain confidentiality rules and disciplinary practices could be viewed as retaliation if they discouraged complaints.
While courts were never required to follow this guidance, it mattered in practice. It shaped how investigations were conducted, how aggressively cases were pursued, and how much pressure employers faced to settle.
By rescinding the guidance, the EEOC withdrew this consolidated framework. Some of its more aggressive interpretations may now receive less emphasis. But many of the underlying principles already exist in court decisions and state laws. The rescission reflects a shift in tone - not a retreat from enforcement.
Three Common Misunderstandings
Whenever federal agencies change direction, employers tend to swing between overreaction and complacency. Both are risky.
"The standards must be different now."They are not. Employees still must show conduct that is severe or pervasive. Employer liability still depends on notice, supervision, and response. Retaliation remains one of the most common bases for claims.
"This reduces our legal exposure."For most businesses, the biggest risks come from internal failures: weak documentation, delayed investigations, inconsistent discipline, and poor supervisor responses. None of that has changed.
"We can relax our policies and training."Courts still look closely at whether employers took reasonable steps to prevent and correct misconduct. Policies, training, and reporting systems remain central to that analysis.
Where Employers Still Get into Trouble
Harassment cases are rarely lost because an employer misunderstood federal guidance. They are lost because of predictable operational mistakes.
Common problem areas include:
Reporting systems employees do not trust
Delayed or informal investigations
Inconsistent discipline
Emotional or defensive supervisor reactions
Retaliation after complaints
These problems create bad records. Bad records drive settlements and verdicts against employers.
Five Practical Steps to Stay Defensible
Employers who want to protect themselves should focus on building reliable systems rather than worrying about what the EEOC is doing.
Confirm your reporting options.Take your employees' complaints seriously. Employees should have more than one realistic way to report concerns, including an option outside their direct chain of command.
Standardize investigations.Use a consistent, impartial process. Document findings. Avoid "informal" resolutions that leave no paper trail.
Train supervisors on first responses.The first conversation after a complaint often becomes evidence. Managers should know what to say - and what not to say.
Review discipline patterns.Standardize your disciplinary proceedings. Similar conduct should lead to similar consequences. Deviations should be documented and justified.
Keep policies practical and neutral.Focus on professionalism and reporting procedures. Avoid turning workplace policies into ideological statements.
The Bottom Line
The EEOC's rescission of its 2024 harassment guidance changes an enforcement roadmap for the Agency. It does not change employers' responsibilities.
For small and mid-sized employers, the safest course remains the same: prompt response, fair investigations, consistent discipline, and careful documentation. Those practices reduce legal exposure regardless of which administration is in office.
In harassment litigation, boring compliance is usually the best defense.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Jeffrey D. Wilson
Pender & Coward
222 Central Park Ave.
Suite 400
Virginia Beach
VA 23462
United States
Tel.: +1 757 490-3000
E-mail: info@pendercoward.com
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Attorneys: (Pender & Coward).
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