By: Ty Hyderally, Esq. and Jamie Davila, Esq.

Date: February 13, 2026

The Equal Employment Opportunity Commission (EEOC) filed a request on December 29, 2025, with the Office of Information and Regulatory Affairs for authorization to cancel the guidance known as the “Enforcement Guidance on Harassment in the Workplace,” that was issued in 2024[1].  The guidance was issued under President Biden and the document provided specific guidance on what constituted harassment in the workplace.

The Biden era guidance expanded the EEOC’s explanation on potential harassment based on “color”, stating that while discrimination based on color is “sometimes related to harassment based on race or national origin, color-based harassment due to an individual’s pigmentation, complexion, or skin shade or tome is independently covered under Title VII.[2] The guidance also covered harassment based on pregnancy, childbirth, or related medical conditions, if the harassment “is linked to a targeted individual’s sex.”[3] The guidance further explained the EEOC’s view that discrimination based on sexual orientation or gender identity is a form of unlawful sex-based discrimination under Title VII. The guidance also clarified the EEOC’S position that “retaliatory harassing conduct” may still be challenged as unlawful retaliation “even if it is not sufficiently severe or pervasive to alter the terms and conditions of employment, if the conduct created or resulted in a hostile work environment.” The EEOC specified that the legal standards for hostile work environment and retaliation are different as the anti-retaliation provisions proscribe a broader range of behaviors, such as “anything that might deter a reasonable person from engaging in protected activity.” [4]

This decision follows the changes made in May 2025 where portions of the guidance related to harassment on the basis of gender identity was vacated by the U.S. District Court in Texas v. EEOC.[5]  During that time, the EEOC could not rescind or modify the document due to the Commission lacking the quorum required to do so. However, this has changed with the appointment of Brittany Bull Panuccio as Commissioner in October 2025.[6]  Since her appointment, the EEOC Commission has moved forward with the request to rescind the guidance document in its entirety. This is an unprecedented move as the EEOC sent the rescission request as a final rule. If the EEOC sent the request as a proposal, which is what was normal past practices,  the request would require that notice be sent out and allow for public comment. The EEOC side-stepped this obligation by sending the rescission decision as a final rule.

This action by the EEOC is a direct reflection of responsive action to the demands made by President Trump. The removal of the guidance would follow through with  President Trump’s Executive Order.  President Trump’s Executive Order was aimed at  rolling back transgender protections as well as other protections for other marginalized groups. Although there is no clear indication whether the EEOC will issue a replacement guideline on workplace harassment, it is reasonable to anticipate that the previous protections and definitions of what constitutes workplace harassment will change dramatically.  Depending on your perspective, this may be a good or bad thing.  Certainly one can anticipate that the new guidelines for defining workplace harassment, the legal analysis of the standard for harassment, and the employer’s liability applicable to claims under the EEOC statutes, will probably be modified in a direction that is friendly to companies.  However, it is important to remember that Title VII is Federal law and is still fully enforceable.  Further, States such as New Jersey and New York have robust anti-discrimination/harassment and anti-retaliation laws.

If you feel that you are the target of discrimination, harassment, whistleblower retaliation, or some other issue in the workplace, or if you have any questions regarding your rights as an employee, you should seek out an experienced attorney who concentrates in employment law. Our firm has been concentrating in employment law for over twenty-three (23) years!

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[1] Rachel Rubino, EEOC Moves to Rescind Workplace Harassment Guidance, JDSupra, January 19, 2026, https://www.jdsupra.com/legalnews/eeoc-moves-to-rescind-workplace-4959605/ (Last visited on January 21, 2026).

[2] Tiffancy Stacy, Nonnie L. Shivers, Zachary V. Zagger, EEOC Publishes Long-Awaited Final Guidance on Workplace Harassment, Ogletree Deakins, April 30, 2024, https://ogletree.com/insights-resources/blog-posts/eeoc-publishes-long-awaited-final-guidance-on-workplace-harassment/?_gl=1*nvf8w0*_up*MQ..*_ga*MzA2MDk2OTk3LjE3Njg4NjM3MzI.*_ga_V4WT9JNBFT*czE3Njg4NjM3MzEkbzEkZzAkdDE3Njg4NjM3MzEkajYwJGwwJGgw (Last visited on January 21, 2026).

[3] Id.

[4] Id.

[5] Texas v. EEOC, No. 2:24-CV-173 (N.D. Tex.).

[6] Id. at 1.