In early 2024, the Equal Employment Opportunity Commission adopted Enforcement Guidance interpreting the proscription of Title VII against harassment based on several categories. The entire Guidance was the product of ten years of research and asking for public comments. It applied to harassment based on race, gender, disability, etc. It also applied to harassment based on gender identity. In early, 2026, Pres. Trump fired two of the five members of the EEOC Board. The two who were fired were Democratic appointees. That termination violated US Supreme Court precedent. But, it appears the new US Supreme Court will probably uphold those firings.

With two fewer Democrat appointees, the EEOC Commission then voted by a 2-1 vote to rescind that Enforcement Guidance on Harassment in the Workplace. The EEOC took this move on Jan. 22, 2026. It has no plan to replace the guidance.

EEOC Guidance

The EEOC has published a series of Guidance papers since the 1970s. They apply to all the discrimination statutes and address specific issues. Today, there are maybe 20 such different papers, all providing guidance on the various types of discrimination. They provide guidance to employees, but especially to employers regarding the meaning of the various discrimination statutes. That guidance is essential to Human Resources offices across the country who wish to avoid problems with discrimination. As one well-known defense lawyer said:

“I conduct a lot of harassment training, and it goes down a lot more easily if you say, ‘This isn’t me saying this, this is what the EEOC says,’ or ‘This is what the courts say,’” she notes. “It’s nice to have some authority to point to when you’re telling people things they may not want to hear.”

Robin Shea with the Constangy law firm. The guidance papers always include several hypothetical situations that help explain the meaning of these complicated statutes.

The EEOC rescinded the guidance on harassment apparently because it included gender identification as one of its protected classes. Okay, but that does not explain why the entire Guidance paper had to be rescinded.

Vacated

In May, 2025, Judge Matthew Kacsmaryk of the Northern District of Texas vacated the gender identity portion of the Harassment Guidance – but not the entire 189 pages of examples and explanation. See State of Texas v. EEOC, No. 24-CV-173(N.D. Tex. May 15, 2025). But, that is an odd decision. Judge Kacsmaryk vacated guidance. He did not vacate an actual regulation or statute. EEOC Guidance is not typically found to be binding. See, e.g. EEOC v. Catastrophe Management Solutions, 852 F.3d 1018, 1031 (11th Cir. 2016) (“T]he rulings, interpretations, and opinions” of an agency charged with enforcing a particular statute, “while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance”). I myself have read many decisions in which courts simply ignored the EEOC guidance that was offered in a case. Most judges would agree that EEOC guidance is just that, guidance, not statutory law or regulation. Judge Kacsmaryk stretched the facts quite a bit in his May, 2025 decision to find this guidance had some binding effect. Heck, even this harassment guidance itself said it was not legally binding.

Odd Decision

Judge Kacsmaryk’s odd decision in Texas v. EEOC was not appealed. They did not appeal, probably because by that time, the Trump DOJ was in place and the Department of Justice withdrew from the case. Small Business Majority, Main Street Alliance and American Sustainable Business Council, representing tens of thousands of small businesses, opposed the attempt by Texas to vacate this harassment guidance. Those three groups submitted an amicus opposing the lawsuit against the harassment guidance. Their brief emphasized the need for clear guidance for businesses.

This rescission by the EEOC represents a remarkable waste of time and careful explanation. Over the years, I have come to develop a great appreciation for the quality of the EEOC’s various guidance papers. See ABA Bar Journal report here for more information.