LEGALLY SPEAKING: EEOC Retreats From Strict Transgender Harassment Rules: What Employers Can Expect Now.

By attorney Bob Dunlevey and attorney Marc Fleischauer of Taft Law on Wednesday, 2/4/2026

On January 22, 2026, the newly constituted Equal Employment Opportunity Commission under the Trump administration voted to rescind its own 2024 Biden-era guidance that had expressly shielded gay and transgender employees from specific treatment deemed harassing or discriminatory.  This vote signals a meaningful retreat from the strict, expansive workplace rules the 2024 harassment guidance imposed, particularly around transgender issues and everyday conduct like pronoun use. The underlying law still prohibits discrimination and harassment, but the EEOC’s enforcement posture has clearly shifted in a more limited direction.

What the EEOC Has Stepped Back From

The 2024 guidance gave the strong impression that a wide range of conduct involving gender identity – such as persistent misgendering, disputes over bathrooms and locker rooms, and conflicts over dress codes – would almost automatically be treated as unlawful harassment. The rescission pulls back that message and removes those specific examples from the EEOC’s official playbook.  According to the EEOC’s press release about the vote, this move “restor[es] the EEOC’s role of protecting women in the workplace.”

Agency leadership has also emphasized that even the Supreme Court’s 2020 decision in Bostock v. Clayton County, which recognized LGBTQ discrimination and harassment under Title VII, does not require the broad approach reflected in the now-rescinded 2024 guidance, especially regarding pronouns and facilities. This change creates more room for employers to adopt policies that balance workplace order, privacy, and operational needs without feeling compelled to mirror the rescinded guidance line by line.

What Still Matters Legally

Title VII has not changed, and Bostock remains the controlling Supreme Court precedent recognizing that discrimination based on gender identity and sexual orientation can be sex discrimination. Courts can and will still entertain hostile environment and discrimination claims based on LGBTQ status, and employers should not read the EEOC’s retreat as a blanket safe harbor.  Likewise, some state and local laws still provide specific protections for gay and transgender employees.  For example, Ohio does not yet have a comprehensive statewide statute expressly listing sexual orientation and gender identity as protected categories in private-sector employment, but multiple cities and counties (including Columbus, Cincinnati, Cleveland, Dayton, Toledo, and others) have local ordinances that prohibit such discrimination.

At least at the federal level, the EEOC’s decision suggests that not every disagreement over pronouns, not every bathroom policy, and not every awkward interaction will be treated as a civil rights violation. The focus is likely to return to the traditional standard: whether conduct is severe or pervasive enough, and clearly tied to protected status, to alter the terms and conditions of employment.

Practical Leeway for Employers

For industrial employers, who often manage rugged environments, shift work, and close‑quarters facilities, the new posture provides more flexibility in how to structure and enforce workplace rules. It becomes more realistic to differentiate between truly abusive conduct and everyday frictions that can be handled through coaching and internal discipline, not necessarily as federal civil rights matters.

Employers can also take a more measured approach to policy language. Where a company may previously have felt pressure to adopt very prescriptive pronoun, restroom, and dress code rules to align with EEOC examples, employers now may have more room to craft policies that fit their specific operations and workforce cultures, so long as such policies are applied consistently and without clear targeting of a protected group.

Adjusted Policy and Training Recommendations

Here is how a company might recalibrate its practical approach to reflect the retreat from strict prohibitions while still managing risk:

• Keep anti-harassment policies broad and neutral. Prohibit harassment based on any protected characteristic, including sex, gender identity, and sexual orientation, but avoid locking in rigid, one-size-fits-all rules that go beyond what the law clearly requires.

• Distinguish between intentional abuse and genuine mistakes. Treat repeated, targeted slurs or intentionally demeaning conduct as potential harassment; handle isolated misstatements, misunderstandings about pronouns, or one‑off conflicts primarily through coaching and performance management, unless they escalate.

• Preserve operational control over facilities. Maintain bathroom, locker room, and PPE policies that prioritize safety, privacy, and regulatory compliance; be open to individual accommodations where reasonable, but understand that you have more space to justify neutral, business‑based rules.

• Focus supervisor training on judgment and escalation, not scripts. Train leaders to recognize when conduct is moving from “shop-floor banter” into truly offensive territory, to document patterns over time, and to elevate issues that appear targeted or persistent, rather than treating every comment as a potential violation.

• Align with your jurisdiction and risk tolerance. In jurisdictions with more protective state or local laws, you may elect to maintain stricter internal standards; in others, you may decide to moderate prior practices while still guarding against clear hostility or retaliation.

As a practical example, if a supervisor in a plant hears occasional disagreements among employees over pronouns, but no one is being threatened, mocked, or isolated, the revised climate likely allows the supervisor to address it as a professionalism and respect issue – i.e., through a conversation and reminder of company expectations – rather than immediately treating it as a presumptive Title VII violation. Only if behavior becomes targeted, repeated, and/or clearly hostile does it need to be escalated as a potential harassment matter.

Strategic Outlook

Going forward, the EEOC’s step back from the 2024 guidance suggests fewer attempts to stretch harassment law into every area of gender‑identity-related workplace conflict. Employers should still expect enforcement where conduct is clearly abusive, but they can be less concerned that moderate, thoughtfully drafted policies on pronouns, facilities, or dress will automatically be second‑guessed.

For employers, the most effective strategy is to preserve a respectful environment while reclaiming reasonable discretion over how to run facilities, manage teams, and respond proportionately to conflicts. That means avoiding true hostility or retaliation, but also recognizing that the EEOC itself is no longer signaling the same level of strict, categorical prohibition that characterized the rescinded guidance.

For more information, contact Taft.  Certified Specialists in Labor and Employment Law Bob Dunlevey (937-641-1743) and Marc Fleischauer (937-641-2086) represent employers and trade associations throughout the United States involving NLRB, EEOC, OSHA and DOL matters.  They have repeatedly been awarded Best Lawyers in America and Super Lawyer designations in labor and employment law.

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