EEOC Rescinds Biden-Era Guidance Recognizing Unlawful Harassment Over Sexual Orientation, Gender Identity

Quick Hits

• The EEOC voted 2–1 along party lines to rescind the 2024 anti-harassment guidance that recognized harassment based on sexual orientation and gender identity as unlawful under Title VII.
• The reversal aligns with the Trump administration and EEOC Chair Andrea Lucas’s federal policy shift to define sex as immutable and binary.
• This rescission follows a federal court ruling that the EEOC had overstepped its authority with the original guidance, finding it had unlawfully broadened the interpretation of sex-based discrimination.

The 2024 harassment guidance, which was adopted in a 3–2 vote, broadly updated the EEOC’s interpretations of anti-harassment protections under federal law, but notably, it addressed new positions on harassment based on “race” and “color” and pregnancy and childbirth, as well as sex-based harassment against LGBTQ+ individuals.

The guidance came on the heels of the Supreme Court of the United States’ 2020 decision in Bostock v. Clayton County, Georgia, which held that Title VII of the Civil Rights Act of 1964 prohibits employers from making hiring or termination decisions as to employees or applicants based on their gender identity (including being transgender) or sexual orientation as unlawful sex discrimination under Title VII. However, a federal court in Texas vacated portions of the guidance in May 2025, finding that the EEOC had exceeded its authority.

Despite the court order, EEOC Chair Lucas, who voted against adopting the guidance in 2024, targeted the guidance for formal rescission. Chair Lucas has nevertheless recognized (including in her confirmation hearing testimony) that Bostock remains good law as to hiring, firing, and promotion decisions.

Commissioner Brittany Panuccio, another Trump appointee who was confirmed to the Commission in October 2025, joined Lucas in voting to rescind the guidance. Commissioner Kalpana Kotagal, a Biden appointee, voted against rescission, while criticizing the Commission for rescinding the guidance document in its entirety instead of excising parts with which the majority disagrees.

The vote comes a week after the EEOC voted to change its procedures for voting on agency policies and enforcement changes, granting the chair the authority to deny requests from other commissioners to hold public or private meetings to consider changes.

EEOC’s 2024 Harassment Guidance

The 2024 harassment guidance was the first significant update to the EEOC’s interpretations of the legal standards and employer liability for unlawful harassment under federal law in more than two decades. It outlined the EEOC’s prior decisions and enforcement strategy that discrimination based on sexual orientation and/or gender identity is a form of unlawful sex-based discrimination under Title VII of the Civil Rights Act of 1964.

The guidance had specifically recognized certain conduct as potentially unlawful harassment, such as:

• “outing,” or the deliberate disclosure of an individual’s sexual orientation or gender identity without their permission;
• other harassing conduct toward an individual because “not present in a manner that would stereotypically be associated with that person’s sex”;
• misgendering, meaning the “repeated and intentional” use of a name or pronoun inconsistent with an individual’s “known” gender identity; and
• the denial of access to a bathroom or other sex-segregated facility consistent with an individual’s gender identity.

The guidance also expanded the explanation of potential harassment based on “color” under Title VII, taking the position that color-based harassment could occur between employees of the same race or national origin.

Additionally, the guidance also took the position that harassment based on childbirth, or related medical conditions, “can include issues such as lactation; using or not using contraception; or deciding to have, or not to have, an abortion,” if that harassment “is linked to a targeted individual’s sex.”

In May 2025, the U.S. District Court for the Northern District of Texas ruled that EEOC had exceeded its authority because the guidance “contravenes Title VII’s plain text by expanding the scope of ‘sex’ beyond the biological binary.” The court vacated the portions addressing accommodations for bathrooms, dress, and pronouns. Following that order, the EEOC added a disclaimer to the published guidance and highlighted portions that had been vacated.

Shift in EEOC Enforcement

The rescission of the 2024 guidance comes after then-Acting EEOC Chair Lucas, in January 2025, removed language from several materials from its internal and external websites and other documents to align with President Donald Trump’s inauguration day executive order, EO 14168, titled “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” That EO directed federal agencies to “enforce laws governing sex-based rights, protections, opportunities, and accommodations to protect men and women as biologically distinct sexes.”

At that time, Lucas targeted the 2024 guidance as requiring EEOC approval, calling the guidance “fundamentally flawed.” Lucas also previously issued a statement on the guidance, arguing that protections for sexual orientation or gender identity, including regarding pronouns and bathroom access, unlawfully expand on the Bostock holding, which applies to hiring or termination decisions.

Next Steps

The rescission of the guidance removes employer guidance on potential unlawful harassment and signals a shift in the EEOC’s enforcement. The EEOC’s interpretations in the now rescinded nonbinding guidance may still be helpful for employers to understand the law and potential harassment claims that can be pursued by litigants. While the EEOC’s step with a quorum is not surprising given shifting federal policy and priorities, employers could still face employee claims and liability for unlawful harassment, and the Bostock decision remains binding Supreme Court precedent. Employers may want to remain acutely aware of all applicable law, including applicable state, local, and federal law.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance Practice Group and Workforce Analytics and Compliance Practice Group will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, Governmental Affairs, and Workforce Analytics and Compliance blogs as additional information becomes available.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.

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