The EEOC’s 2024 harassment guidance is gone. A federal court in Texas vacated its gender identity provisions in May 2025, and on January 22, 2026, the Commission voted 2-1 to rescind the entire guidance. For California employers, the practical effect is small. California’s Fair Employment and Housing Act separately bars harassment because of gender identity, gender expression, and sexual orientation, and it requires employers to take all reasonable steps to prevent harassment. A policy written to the federal floor still leaves a California employer exposed.
What did the Texas court decide?
That the EEOC exceeded its authority in the gender identity sections. In State of Texas v. EEOC, No. 2:24-cv-173-Z (N.D. Tex. May 15, 2025), the court held that the agency “exceeded its statutory authority by issuing Enforcement Guidance requiring bathroom, dress, and pronoun accommodations inconsistent with the text, history, and tradition of Title VII and recent Supreme Court precedent.”
The court vacated specific parts of the guidance, including “The entirety of Section II(A)(5)(c) outlining harassment based on sexual orientation and gender identity” and language defining sexual orientation and gender identity as a protected class. It declined to issue an injunction, finding that the plaintiffs’ injuries “are fully redressed by the Court’s vacatur.” A one-page judgment followed on May 22, 2025.
What did the EEOC do next?
It withdrew the whole document. The EEOC announced on January 23, 2026 that the Commission “voted 2-1 yesterday” to rescind the Enforcement Guidance on Harassment in the Workplace. The rescission goes beyond the Texas ruling: it removes the guidance’s general discussion of hostile work environments, employer liability, and prevention too.
The agency also stressed what hadn’t changed. Its release said, “Rescinding this guidance does not give employers license to engage in unlawful harassment,” and that federal laws against discrimination, harassment, and retaliation and the Supreme Court precedent interpreting them “remain firmly in place.”
Does any of this change California law?
No. Government Code section 12940(j)(1) makes it unlawful for an employer or any other person to harass an employee because of, among other things, “sex, gender, gender identity, gender expression, age, sexual orientation.” The same subdivision says “An entity shall take all reasonable steps to prevent harassment from occurring.”
Federal guidance never set the California standard. The FEHA covers employers with as few as one employee for harassment purposes, imposes personal liability on the harassing employee, and adds a separate failure-to-prevent claim under subdivision (k). A California employee who claims harassment based on gender identity will typically sue under the FEHA in state court, where the EEOC’s guidance carried little weight anyway.
| Issue | Federal status | California status |
|---|---|---|
| 2024 EEOC guidance | Rescinded January 2026 | Never controlled FEHA claims |
| Gender identity harassment | Gender identity sections vacated May 2025 | Expressly prohibited by Gov. Code § 12940(j)(1) |
| Duty to prevent | Title VII statute unchanged | All reasonable steps, plus a separate claim |
What changes for multistate employers?
Mostly the drafting. Employers with a single national harassment policy sometimes cite federal guidance in their training or policy language. Those references should be removed. The safer course for a company with California employees is to keep a California-specific policy that tracks the FEHA’s protected categories and California’s own training requirements, rather than trimming to whatever the federal floor is this year.
Prevention and training duties are covered in the firm’s post on harassment training and failure to prevent, and individual exposure in the post on personal liability for harassers under the FEHA.
What should a California employer do now?
Check the paperwork, not just the headlines.
- Keep harassment complaints, investigation files, and training records under the usual retention and litigation hold practices; nothing about the rescission changes those.
- Calendar a policy review, and confirm the EPLI policy’s notice requirements haven’t changed with any renewal.
- Identify every policy, handbook, and training module that cites the 2024 EEOC guidance.
- Pull the California harassment policy and confirm it lists every FEHA protected category, including gender identity and gender expression.
- Talk to employment counsel before changing restroom, dress code, or pronoun practices for California employees based on federal developments.
Harassment claims are a core part of defending California employers against harassment claims.
EEOC guidance questions employers ask
Does the rescission affect pending EEOC charges?
It changes the agency’s interpretive document, not the statute. Title VII and the Supreme Court cases interpreting it still govern how the EEOC investigates a charge. Many California charges are also dual-filed with the Civil Rights Department, which applies the FEHA. An employer responding to a charge should answer under both statutes, not rely on the rescission.
Can a California employer adopt a federal-only harassment policy?
It can, but it would be a mistake. The FEHA’s protected categories are broader than Title VII’s text, and the FEHA requires employers to take all reasonable steps to prevent harassment. A policy that omits gender identity or gender expression invites a failure-to-prevent claim and weakens the defense in any harassment case.
Will the EEOC issue new guidance?
The agency may, but the rescission didn’t come with a replacement. Without one, federal courts’ decisions under Title VII and California’s statute and regulations are the working sources. For California workplaces, the state rules have always been the stricter ones.
If your company is facing a harassment complaint
If an employee has raised a harassment complaint or filed a charge with the EEOC or the Civil Rights Department, the California rules and your prevention record usually decide the case, whatever happens to federal guidance. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving workplace harassment. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The ruling is State of Texas v. EEOC, No. 2:24-cv-173-Z (N.D. Tex. May 15, 2025). The rescission is the EEOC’s January 23, 2026 release. California law is Government Code section 12940.
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.