Labor & Employment Developments Blog

The U.S. Equal Employment Opportunity Commission (EEOC) has voted to rescind its anti-harassment guidance that previously stated misgendering employees could constitute unlawful discrimination under Title VII of the Civil Rights Act of 1964. The decision marks a significant rollback of Biden-era workplace protections for LGBTQ+ employees and continues a broader shift in federal enforcement priorities under the second Trump administration.

Background on the Rescinded Guidance

The guidance, finalized in 2024, provided employers with real-world examples of workplace harassment, outlined best practices for compliance, and cited relevant court decisions interpreting Title VII. While it addressed harassment affecting transgender employees—such as misgendering and access to bathrooms and facilities aligned with gender identity—the document applied broadly to harassment of all protected employees.

In May 2025, a Texas federal judge struck down portions of the guidance relating to transgender employees, including protections concerning bathroom and facility access. That ruling weakened the guidance prior to the EEOC’s vote to rescind it in full.

The EEOC Vote and Agency Division

The Commission voted 2–1 to rescind the guidance at a public meeting held at EEOC headquarters in Washington, D.C. Republican Chair Andrea Lucas and Commissioner Brittany Panuccio voted in favor of rescission, while Democratic Commissioner Kalpana Kotagal dissented.

The meeting proved contentious, drawing advocates who held a pre-meeting press conference urging the commission to preserve the guidance. Kotagal argued that the document reflected established law, including the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, which held that Title VII prohibits discrimination based on gender identity and sexual orientation. She also emphasized that the guidance addressed emerging workplace issues such as online harassment and reflected the experiences of marginalized workers.

The guidance was rescinded without a notice-and-comment period. Kotagal unsuccessfully moved to postpone the vote to allow for public input.

Competing Interpretations of Bostock

The rescission aligns with the Trump administration’s narrower interpretation of Bostock. While Bostock held that Title VII bars discrimination on the basis of gender identity and sexual orientation, Chair Lucas has stated that the decision does not extend to conduct such as misgendering employees. In her view, Bostock is limited to adverse actions taken because of an employee’s gender identity or sexual orientation.

At the meeting, Lucas and Panuccio emphasized that rescinding the guidance does not eliminate the EEOC’s authority to pursue harassment claims. Lucas called it “absurd” to suggest that anti-harassment enforcement will cease, noting that such claims “undermine the victims” who brought harassment complaints even before the guidance was issued.

What This Means for Employers

Although the EEOC has withdrawn this guidance, Title VII remains in effect, and employers may still face liability under federal law, as well as under state and local anti-discrimination statutes that may provide broader protections. The rescission may create uncertainty for organizations attempting to balance compliance obligations with shifting enforcement priorities.

Given the evolving legal landscape and differing interpretations of federal law, employers should carefully assess how these changes affect workplace practices and policies, compliance obligations, and risk exposure.

If you have questions about how the EEOC’s rescission of this guidance may impact your organization, KMK’s Labor & Employment attorneys are available to provide experienced guidance.