EEOC Rescinds 2024 Harassment Guidance
~ What It Means and What Has Not Changed
“The guidance is gone, but the law is not. If you’re a Michigan employer wondering what this means for you, the answer is simpler than the headlines suggest — harassment is still illegal, your obligations have not shrunk, and now is not the time to get comfortable.”
If you’ve seen this in your legal update emails, your HR professional group newsletters, or floating around on LinkedIn — you may be wondering what to make of it. On January 22, 2026, the EEOC voted to rescind its 2024 harassment guidance, and depending on the headline you read, it might sound like harassment law just got turned upside down.
It didn’t.
There are some real nuances worth understanding, but the bottom line is this: harassment is still illegal, the law has not changed, and employers who think this is a green light to look the other way are going to find themselves in a very uncomfortable position. Let’s break down what actually happened, what it means, and — maybe more importantly — what it does not mean.
A Quick Civics Lesson — How the EEOC Actually Works
Before we get into what happened, it helps to understand who the EEOC is and how it operates — because the makeup of the commission right now is part of the story.
The EEOC is a federal agency led by five commissioners. All five are nominated by the President and must be confirmed by the Senate. They serve fixed terms and can only be removed for cause — meaning a new administration cannot simply come in and clean house. Once confirmed, they serve out their terms regardless of who is in the White House. The President sets the broader policy agenda, and the Chair — being the President’s appointee — aligns the agency’s strategic priorities accordingly. That’s why the EEOC can feel noticeably different under different administrations even when the underlying law has not changed.
One of the five commissioners serves as Chair, and the Chair drives the agency’s strategy and enforcement priorities. Some actions the Chair can take independently — others require a vote of the full commission.
Here’s where things stand right now:
• Only three of the five seats are currently filled
• Two commissioners were appointed by the current administration, including Chair Andrea Lucas
• One commissioner — Kalpana Kotagal — was appointed by the prior administration
• The commission regained its quorum — the minimum number of members needed to take official action — in October 2025 when the third seat was filled
• The vote to rescind the 2024 harassment guidance: 2-1
That 2-1 vote matters because it tells you this was not unanimous. Commissioner Kotagal opposed the rescission, arguing that at minimum there should have been a public notice and comment period before pulling the guidance entirely.
Guidance vs. Regulation — Why the Difference Matters
This is one of those distinctions that sounds technical but is actually pretty important for understanding how much weight any of this carries — so bear with me for a moment.
A regulation is formal law. It goes through a lengthy process — proposed publicly, open for comment, published in the Federal Register, and it takes a minimum of about two years to change. Regulations carry the force of law and employers are legally required to follow them.
A guidance is different. It’s the agency’s interpretation of how it views the law — essentially the EEOC saying “here’s how we’re going to look at this.” Guidance does not go through that same formal process, it carries less legal weight, and it can be issued or rescinded much more quickly — as we just saw with the 2-1 commission vote on January 22, 2026.
Here’s the practical takeaway: guidance is not law. But it matters — because it tells you how the EEOC is likely to interpret a complaint if one lands on their desk. When guidance exists, employers have a roadmap. When it’s gone, there’s more uncertainty about how the agency will evaluate your policies and practices.
The 2024 harassment document was a guidance — not a regulation. That’s why it could be pulled with a commission vote rather than years of rulemaking. And importantly, no replacement guidance has been announced yet, which leaves employers navigating without that roadmap for now.
First, Let’s Talk About Protected Classes
Before we get into what the 2024 guidance said and why it was controversial, it helps to have a clear picture of who is actually protected under federal and Michigan law. This is foundational stuff — but you’d be surprised how many employers and managers are fuzzy on the details.
Federal Protected Classes
Several different federal laws create protected classes, and each has its own employee threshold:
Title VII of the Civil Rights Act (1964)
Applies to employers with 15 or more employees. Protects against discrimination based on:
• Race
• Color
• Religion
• Sex — including pregnancy, sexual orientation, and gender identity (per the Supreme Court’s Bostock v. Clayton County ruling in 2020)
• National origin
Age Discrimination in Employment Act — ADEA (1967)
Applies to employers with 20 or more employees. Protects workers age 40 and older from discrimination based on age.
Americans with Disabilities Act — ADA (1990)
Applies to employers with 15 or more employees. Protects individuals with a physical or mental impairment that substantially limits one or more major life activities.
Pregnancy Discrimination Act — PDA (1978)
An amendment to Title VII. Protects against discrimination based on pregnancy, childbirth, and related medical conditions.
Pregnant Workers Fairness Act — PWFA (2022)
Applies to employers with 15 or more employees. Requires reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions.
Genetic Information Non-Discrimination Act — GINA (2008)
Applies to employers with 15 or more employees. Prohibits discrimination based on genetic information and restricts how employers can acquire or use it.
Equal Pay Act (1963)
Applies to virtually all employers. Prohibits sex-based wage discrimination for employees performing substantially equal work.
A note for federal contractors: If your organization holds a federal contract, you have an additional obligation — you cannot discriminate based on protected veteran status, and you are required to take affirmative action to employ and advance veterans in your workforce. This falls under the Vietnam Era Veterans’ Readjustment Assistance Act, known as VEVRAA.
Michigan Goes Further — The Elliott-Larsen Civil Rights Act (ELCRA)
If you’re a Michigan employer, you’re playing by a broader set of rules. The Elliott-Larsen Civil Rights Act, originally passed in 1976 and expanded several times since, covers all employers regardless of size — meaning even small employers with fewer than 15 employees are covered by Michigan law.
ELCRA protects against discrimination based on:
• Race
• Color
• Religion
• National origin
• Sex
• Age — and unlike the federal ADEA, Michigan protects against discrimination based on youth as well, not just workers 40 and older
• Height
• Weight
• Marital status
• Familial status
• Sexual orientation — written directly into Michigan law in 2023
• Gender identity or expression — written directly into Michigan law in 2023
• Pregnancy and related conditions
• Hair texture and protective hairstyles such as braids, locks, and twists — protected under Michigan’s CROWN Act, signed into law June 15, 2023
Disability is covered separately under the Michigan Persons with Disabilities Civil Rights Act, which also applies to all employers regardless of size.
The bottom line for Michigan employers: your obligations are broader than federal law in several meaningful ways. Height, weight, marital status, hair texture, and the expanded age protection are all areas where Michigan goes beyond what federal law requires. Make sure your policies and training reflect that.
What Is Harassment — and What Makes It a Hostile Work Environment?
Now that we know who is protected, let’s talk about what harassment actually is — because there’s a lot of confusion out there about where the line is.
Harassment based on any protected characteristic is a discriminatory practice. While sexual harassment tends to get the most attention, the same rules apply to harassment based on race, color, national origin, religion, age, disability, or any other protected class. Employers need to be equally vigilant across the board — and that includes harassment coming from outside your four walls. The harasser does not have to be a coworker or a supervisor. Employers can also be held responsible for harassment by vendors, customers, or other third parties — if they knew or should have known about the conduct and failed to address it.
Hostile Work Environment — What Does That Actually Mean?
A hostile work environment is a specific legal claim, and the bar to prove one is intentionally high. Not every rude comment, awkward interaction, or offensive remark rises to that level. Courts have been clear that workplaces do not have to be perfect — coworkers do not always choose each other, people make mistakes, and some friction is just part of working with other human beings.
To rise to the level of an unlawful hostile work environment, the conduct generally must be:
• Based on a protected characteristic — the harassment has to be connected to race, sex, age, religion, disability, or another protected class, not just general rudeness or poor management
• Severe or pervasive — courts look at how frequent the conduct was, how serious it was, whether it was physically threatening, and whether it actually interfered with the employee’s ability to do their job
• Both objectively and subjectively offensive — meaning a reasonable person in the same situation would find it hostile, AND the person experiencing it actually did find it hostile
Courts evaluate the totality of the circumstances — they look at everything together, not each incident in isolation. One off-color comment probably does not get you there. A pattern of behavior that is frequent, targeted, and severe? That’s a different story.
Anti-Harassment Training Matters — Legally and Practically
Having a solid anti-harassment training program for both employees and supervisors is not just good practice — it can actually serve as a legal defense. If a harassment claim is ever challenged, documented training is one of the ways you can demonstrate that your organization took reasonable steps to prevent it. Do not skip this.
What the 2024 Guidance Said
Now that we have the foundation in place, let’s talk about what was actually in the 2024 guidance — and why parts of it sparked so much discussion.
First, some context. The 2024 guidance was nearly 200 pages long and was actually the EEOC’s first update to its harassment guidance since 1999. Much of it simply restated well-established law that nobody disputes. But two specific pieces generated significant debate — and those are the pieces that ultimately led to its downfall.
The Non-Controversial Parts
The guidance reaffirmed what the law already clearly says — that sexual orientation and gender identity are protected classes under Title VII. This protection came from the US Supreme Court’s 2020 ruling in Bostock v. Clayton County, which held that discrimination based on sexual orientation or gender identity is discrimination “because of sex” under Title VII. That ruling cannot be undone by a new administration, the EEOC, or any federal agency. It is Supreme Court precedent, and it stands. Harassment on those bases is therefore also unlawful — straightforward, not controversial.
Controversial Piece #1 — The Hostile Work Environment Threshold
Here’s where things got sticky. Remember that high bar we just talked about for what constitutes a hostile work environment? The 2024 guidance seemed to suggest that certain behaviors, standing alone, could clear that bar. Specifically:
• Misuse of pronouns
• Asking questions of transgender or LGBTQ+ employees about their identity
• Denying an employee access to the bathroom consistent with their gender identity
The legal community largely pushed back on this. Courts have generally not held that these behaviors, on their own, constitute an unlawful hostile work environment. They can absolutely be part of a pattern of conduct that eventually crosses that threshold — think of them as items that go into the bucket — but one item alone probably does not fill that bucket. The EEOC’s suggestion that they could was a significant departure from where the courts actually stand.
Controversial Piece #2 — Religious Rights vs. LGBTQ+ Rights
This is one of the genuinely hard intersections in employment law, and it is one that is not going away anytime soon. What happens when one employee’s right to be free from harassment based on their gender identity conflicts with another employee’s right to express sincerely held religious beliefs?
The 2024 guidance addressed this conflict — but rather than maintaining a balanced approach, it appeared to take a side. It stated that while sincerely held religious beliefs should be protected, employers are not required to accommodate religious expression that creates or threatens to create a hostile work environment. In other words, the guidance landed squarely in favor of the employee complaining of harassment over the employee asserting religious rights.
For many employers and legal professionals, that felt like the EEOC overstepping — wading into a genuinely unsettled legal debate and declaring a winner before the courts had done so.
The Texas Court Decision
It did not take long after the guidance was published for a legal challenge to follow. A lawsuit was filed in federal court in Texas — a venue that has become a common destination for challenges to federal agency actions — and the outcome was significant.
The Texas federal court vacated the controversial portions of the guidance. Specifically, the court found that the EEOC had exceeded its authority by expanding the definition of sex beyond what Title VII’s plain text supports, and by defining harassment to include things like pronoun misuse and bathroom access as standalone violations.
Here’s what’s worth noting though — the challengers did not stop there. They also asked the court to go further and rule that sexual orientation and gender identity simply are not protected under federal law at all. The court declined. Even a federal court in Texas acknowledged that it is bound by US Supreme Court precedent, and the Supreme Court has already spoken on this in Bostock. That protection stands regardless of what any lower court, agency, or administration thinks about it.
So by the time the EEOC commission voted to rescind the guidance in January 2026, the most controversial pieces had already been vacated by the courts. The commission’s vote essentially finished what the Texas court started — pulling the remainder of the guidance entirely rather than leaving a patchwork document in place.
The Rescission — What Happened and What Was Said
On January 22, 2026, the EEOC commission voted 2-1 to rescind the entire 2024 harassment guidance. Rather than surgically removing the controversial sections — the way the Texas court had done — the commission pulled the whole thing. No replacement guidance has been announced.
What’s worth paying attention to, though, is what happened at the commission meeting where the vote took place. All three commissioners — on both sides of the vote — went out of their way to vocally reaffirm their commitment to fighting workplace harassment. This was not a quiet procedural vote. It was a public declaration that harassment remains a priority regardless of what happened to the guidance.
Chair Andrea Lucas put it plainly in the EEOC’s press release:
“Rescinding this guidance does not give employers license to engage in unlawful harassment. Federal employment laws against discrimination, harassment, and retaliation, and Supreme Court precedent interpreting those laws, remain firmly in place. The EEOC is committed to evenhanded enforcement of these laws. The agency will continue to be dedicated to preventing and remedying unlawful workplace harassment.”
Pay attention to the word evenhanded. That’s the key signal here. The 2024 guidance was criticized for taking a side — favoring employees complaining of harassment based on gender identity over employees asserting religious expression rights. The word evenhanded signals a return to balanced enforcement — treating competing rights as competing, rather than declaring a winner in advance.
What this does NOT mean is that the pendulum has swung in the other direction. Chair Lucas did not say that religious rights now take precedence, or that LGBTQ+ employees have fewer protections than before. She said the agency will enforce the law evenhandedly — which means each situation gets evaluated on its own facts rather than through a predetermined lens.
What Has NOT Changed
This is arguably the most important section of this entire article — because if there is one thing employers should walk away understanding, it is this: the rescission of the guidance did not change the law.
Let’s be very clear about what remains fully in place:
• Sexual orientation and gender identity are still protected classes under Title VII. The Supreme Court said so in Bostock v. Clayton County in 2020. No agency action, executive order, or commission vote can undo a Supreme Court ruling. This protection is not going anywhere.
• Harassment based on any protected characteristic is still unlawful. Race, color, sex, religion, national origin, age, disability, genetic information — all of it. The guidance being gone does not change that.
• The hostile work environment standard still exists. The threshold is still high, it still requires looking at the totality of the circumstances, and employers are still expected to take complaints seriously and respond appropriately.
• Other existing EEOC guidance on harassment remains in effect. The 2024 document was not the only guidance the EEOC has ever issued on harassment. There is plenty of other published guidance that remains on the books — including guidance that specifically affirms harassment based on sex, sexual orientation, and gender identity is unlawful.
• The EEOC is still accepting and investigating harassment charges. Employees retain the full right to file a charge with the EEOC and pursue claims in court.
• Michigan employers have an additional layer of obligation under ELCRA that exists independently of federal guidance. ELCRA’s protections are broader than federal law in several areas, and a Michigan employee may still have a strong state law claim even where federal protections are less clear. Do not assume that what happens at the federal level is the full picture of your obligations as a Michigan employer.
What the rescission does do is remove a detailed interpretive roadmap that employers and HR professionals had been using to understand how the EEOC would evaluate certain situations — particularly around gender identity. Without replacement guidance, there is more uncertainty about how the agency will approach those specific claims going forward. That uncertainty is real and worth acknowledging. But uncertainty is not the same as a free pass.
Key Takeaways for Employers
Let’s bring it home. Here’s what you actually need to do — or not do — with all of this information.
Do not treat this as a green light. The rescission of the guidance is not permission to loosen your standards, look the other way on complaints, or scale back your harassment prevention efforts. Harassment is still illegal. The EEOC is still enforcing. Courts are still hearing these cases and ruling on the merits — and employers who fail to take harassment seriously do not fare well. If anything, the absence of clear guidance creates more uncertainty — and uncertainty is not your friend when a claim lands on your desk.
Understand where your real risk lives. EEOC enforcement matters, but the bigger exposure for most employers has always been private lawsuits. An employee does not need the EEOC to sue you. Watch what the courts are saying about hostile work environment standards — particularly around gender identity — because that’s where the law is actively being shaped right now.
The religious rights vs. LGBTQ+ rights conflict is not resolved. The rescission did not settle this tension — it just removed the EEOC’s previous position on it. Employers navigating situations where these two sets of rights are in conflict are largely on their own right now, without a federal roadmap. These situations are genuinely difficult, and if you find yourself in one, consult your employment attorney before you act.
Keep your policies and training current. Review your anti-harassment policy to make sure it reflects current federal and Michigan law — not just what was in the 2024 guidance. Make sure your training covers all protected classes, addresses third-party harassment from vendors and customers, and is documented. That documentation matters if you ever have to defend yourself.
Watch for further developments. This area of law is moving fast. The EEOC has not announced replacement guidance, executive orders continue to shape agency priorities, and courts are actively deciding cases that will affect how all of this plays out. Stay connected to your legal update sources — your legal update emails, your local or national HR professional groups, and your state or local chamber of commerce — and do not wait for a complaint to force you to pay attention.
One more thing to keep an eye on — the PWFA. While we’re talking about the EEOC, it’s worth a brief mention that Chair Lucas has also signaled her intent to revisit the Pregnant Workers Fairness Act regulations — specifically provisions she views as overreaching, including accommodation requirements related to abortion. Regulations take a minimum of two years to change through the formal rulemaking process, so nothing is imminent. But if you have employees who may be affected by PWFA accommodations, stay tuned.
The Prep List — What You Need to Do
1. Review your anti-harassment policy. Make sure it reflects current federal and Michigan law, covers all protected classes including Michigan’s additional ones, and addresses third-party harassment from vendors and customers. If it has not been updated recently, now is the time.
2. Check your employee handbook. The rescission of the guidance does not change your underlying obligations, but it’s a good trigger to make sure your handbook language is current, clear, and defensible.
3. Conduct or schedule harassment training. All employees need foundational training on what harassment is, what it looks like, and how to report it — and that includes supervisors, who can be perpetrators too. Supervisors also need an additional layer of training specific to their role: how to recognize a complaint, how to respond to it appropriately, and what their obligations are once they know something. Document that the training happened.
4. Don’t ignore the religious rights vs. LGBTQ+ conflict. If you have not thought about how your organization would handle a situation where these two sets of rights collide, think about it now before you’re in the middle of one. This is a good conversation to have with your employment attorney proactively.
5. Stay connected to your legal update sources. This area is moving fast. Your legal update emails, your local or national HR professional groups, and your state or local chamber of commerce are all good ways to stay ahead of developments as they unfold.