Content Highlights
The EEOC made an abrupt “about-face” in how harassment in the workplace should be handled — as that policy pertains to transgender employees. Do you think that the EEOC’s decision was made on the basis of “sex”? We address that question in this week’s article.
At Gardner Employment Law, we have addressed harassment problems at work for years, and we want to keep you up to date on changes in the law. Please read on to learn about the EEOC’s latest move.
What Did the EEOC Do and Why Does It Matter?
In January 2026, the EEOC (Equal Employment Opportunity Commission) rescinded its 2024 policy, Enforcement Guidance on Harassment in the Workplace. That policy had particular importance for transgender and gender-nonconforming employees because it clearly identified certain conduct, such as repeated misgendering, as potential workplace harassment.
The EEOC rescission of this important policy has caused workers to question whether federal harassment protections have been weakened or removed altogether. The short answer is no – but the practical reality for employees has become more complicated.
The language of Title VII, which governs decisions about discrimination at work, could not be more clear:
It is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).
If the action is “because of” an employee’s sex, that is illegal.
The guidance had explained how the EEOC interpreted Title VII’s prohibition on sex-based harassment and included concrete examples involving sexual orientation and gender identity. When the EEOC rescinded its harassment policy, that guidance was removed from all EEOC materials.
The EEOC’s rescission matters because it:
- Removes explicit federal examples recognizing gender identity-based harassment
- Makes it harder for employees to predict how the EEOC may evaluate complaints
- May discourage workers from reporting harassment due to uncertainty
While the underlying law has not disappeared, the loss of guidance can make employees feel less protected and more hesitant to assert their rights.
How Does the EEOC’s Withdrawal of its Guidance Change Harassment Protections?
The EEOC’s January 2026 rescission of its harassment policy does not erase legal protections, but it does change the visibility and clarity of those protections.
Without the guidance:
- Employees have fewer official references explaining how harassment law applies to gender identity issues
- Complaints may rely more heavily on judicial interpretations rather than agency explanations
- Outcomes may vary more widely depending on jurisdiction and facts
For workers experiencing harassment, this can mean a higher emotional and legal burden when deciding whether to come forward to report that they are being harassment because of their gender.
Despite the rescission, federal law still protects employees from sex-based harassment. Title VII of the Civil Rights Act remains in force, and the U.S. Supreme Court’s decision in Bostock v. Clayton County confirmed that discrimination based on sexual orientation and gender identity is a form of sex discrimination.
Employees, including transgender employees, may still:
- File harassment and discrimination charges with the EEOC
- Bring lawsuits under Title VII
- Rely on state and local laws that may provide even broader protections
The EEOC’s withdrawal of guidance does not legalize harassment or strip workers of their rights.
What Protections Did the 2024 Guidance Provide Compared to Now?
The table below shows how the rescission affects employees’ practical understanding of harassment protections:
| Issue | Under 2024 EEOC Guidance | After Guidance Was Rescinded |
| Misgendering | Identified as potential harassment when repeated or intentional | No explicit EEOC example; assessed case-by-case |
| Pronoun Usage | Clarified when misuse could contribute to a hostile work environment | No agency explanation; depends on court rulings |
| Bathroom Access | Addressed as a potential harassment factor | Governed by evolving case law and local laws |
| Clarity for Employees | High: plain-language examples from EEOC | Lower: employees must rely on legal precedent |
| Willingness to Report | Encouraged by clear federal guidance | May be chilled by uncertainty |
Bottom Line for Workers
The EEOC’s decision to rescind its harassment guidance does not eliminate federal protections, but it does remove a clear, employee-friendly explanation of how those protections apply – particularly for transgender workers. And – the EEOC’s official action sends a negative message about whether transgender workers should be entitled to protection.
If you are facing workplace harassment or discrimination, understanding your rights and seeking legal guidance early can make a critical difference. We can help.