The Equal Employment Opportunity Commission (EEOC) started 2026 by announcing changes to both policy and procedure. It appears the EEOC's new chair, Andrea Lucas, intends to vigorously pursue the Trump Administration's agenda and is moving quickly to make her mark on the agency. In the course of one week, Lucas led the EEOC in rescinding 2024 anti-harassment guidance and adopting a resolution to change the EEOC's longstanding procedures for litigation authorization.
Recission of Harassment Guidance
On January 22, 2026, the EEOC rescinded its guidance on harassment in the workplace by a vote of 2-1. It did so without following the normal notice-and-comment period, which would have allowed for public comment on the proposed rule change. This abbreviated approach is consistent with the Office of Management and Budget's encouragement to agencies to maximize their use of the "good cause" exception in the Administrative Procedure Act and repeal "unlawful regulations" "without notice and comment." Employers can expect that future changes in guidance and regulation to be similarly implemented without advanced opportunity for public comment.
The rescinded guidance, which provided illustrative examples of harassment under various anti-discrimination statutes, had come under legal and political attack for its discussion of gender-identity issues. The recission of the guidance, however, does not change employers' nondiscrimination obligations. The EEOC confirmed as much in its announcement, where Lucas stated: "Federal employment laws against discrimination, harassment, and retaliation and Supreme Court precedent interpreting those laws remain firmly in place."
Nor does the recission mean that harassment investigations will be deprioritized by the EEOC. In fact, sexual harassment settlements, investigations, and lawsuits continue to feature prominently in the EEOC's recent work.
Resolution to Enhance the EEOC's Litigation Authority
The EEOC also voted 2-1 to approve a resolution that returned to the EEOC Chair and Commissioners the authority to approve or disapprove new and intervening litigation. For the last 30 years, this litigation authority had been delegated to the EEOC's General Counsel and Regional Attorneys. Now, in most cases, the General Counsel will only be able to proceed with litigation upon approval by the EEOC, which will vote on litigation recommendations submitted by the General Counsel.
This change consolidates power in the EEOC's politically appointed commissioners—a majority of whom were appointed by Republican presidents. In alignment with the Chair's priorities, the EEOC will likely focus its litigation on suits alleging antisemitism and other religious discrimination, anti-American national origin discrimination, discriminatory DEI programs and initiatives, reverse discrimination against white men, and lack of access to single-sex spaces at work.
We will continue to monitor changes to EEOC policies and practices. If you have any questions regarding the changes at the EEOC or your business's operations, please reach out to the authors or your regular Saul Ewing attorney.
