Employment Law Report
EEOC Rescinds 2024 Sexual Orientation and Gender Identity Based Harassment Guidance
Written by: Drayden Burton
On January 22, 2026, the Equal Employment Opportunity Commission (EEOC) voted to rescind its 2024 guidance related to discrimination and harassment based on sexual orientation or gender identity without a public notice and comment period. The 2024 guidance sought to animate the Supreme Court’s decision in Bostock v. Clayton County, 590 U.S. 644 (2020) by prohibiting certain conduct such as the improper use of an undesired pronoun or denial of access to a bathroom consistent with an individual’s gender identity.
Unquestionably, this decision was influenced by the January 20, 2025, Executive Order titled “DEFENDING WOMEN FROM GENDER IDEOLOGY EXTREMISM AND RESTORING BIOLOGICAL TRUTH TO THE FEDERAL GOVERNMENT.” The Executive Order states that the term “sex” is to refer to “an individual’s immutable biological classification as either male or female” and “does not include the concept of ‘gender identity’” and directs agencies to remove any references to gender ideology. This Executive Order, combined with other recent developments, demonstrates the current administration’s policy position on the issue of sexual orientation and gender identity.
What does this mean for employers?
Importantly, employers must realize that the recission of this guidance does not give them a license to engage in unlawful harassment. This recission does not change any existing employment laws against discrimination, retaliation, or harassment based on any protected characteristic. Nor does it change the Supreme Court’s decision in Bostock which held that discrimination based on sexual orientation and gender identity is unlawful. Employers should not take this action as evidence that enforcement of anti-discrimination and harassment laws are diminishing—they must stay vigilant. So, maintaining and enforcing robust anti-harassment and discrimination policies is crucial. The downstream effect of this recission is that employers will no longer be able to rely on the EEOC’s guidance on specific issues related to sex or identity-based discrimination. This lack of guidance may create a number of “grey area” cases where it is unclear whether the claimed activity constitutes unlawful harassment or discrimination. Regardless, employers should consult with an experienced employment attorney to create comprehensive discrimination and harassment policies for their businesses.
