EEOC Strengthens Litigation Authority, Rescinds Workplace Harassment Guidelines

The U.S. Equal Employment Opportunity Commission (EEOC or alternatively referred to as the Commission) recently adopted a resolution that significantly strengthens its authority to decide whether to commence or intervene in litigation in most discrimination claims. The EEOC also rescinded its 2024 Enforcement Guidance on Harassment in the Workplace, which a federal court in Texas previously held to be unlawful, in part due to its expansion of the definition of “sex” and its guidance related to sexual orientation and gender identity. Neither action will immediately impact employers' anti-discrimination practices, but they illustrate the Commission's change in direction from the prior administration.

I. EEOC Changes Procedure For Approval of Discrimination Lawsuits

In January 2026, the EEOC voted 2-1 to adopt a resolution that provides it with the authority to approve most discrimination lawsuits filed on its behalf. The stated purpose of the resolution is to allow the EEOC to exercise its authority “to commence or intervene in litigation, and to execute that authority in a more effective and efficient manner.” As a practical matter, this resolution decreases the authority of the General Counsel and Regional Attorneys to commence litigation and consolidates this authority within the Commission.

Under this updated procedure, the General Counsel will submit recommendations to the EEOC, which will consider and vote upon the recommendations within seven business days for the following matters:

• Cases that the General Counsel reasonably expects will involve a major expenditure of agency resources or that are likely to require extensive discovery or use of expert witnesses, including all cases involving 15 or more aggrieved individuals.
• Cases involving issues on which the Commission has taken a position contrary to judicial decisions in the Circuit in which the case will be filed.
• Cases involving issues on which the General Counsel proposes to take a position contrary to judicial decisions in the Circuit in which the case will be filed.
• Cases that may implicate unsettled areas of the law or that are reasonably likely to create public controversy.

For cases that do not fall into one of these categories, the Commission will vote on whether to commence litigation based on the recommendation within five business days.

The General Counsel now has limited authority to commence litigation regarding enforcing the EEOC's record keeping and reporting requirements and cases involving a consent decree, settlement, or other resolution of litigation.

This resolution does not impact employers' obligations to comply with Title VII and all other relevant statutes pertaining to workplace harassment and discrimination, so employers should ensure that their policies are up to date and that they continue to comply with their anti-discrimination practices. However, this resolution will greatly increase the Commission's involvement in approving lawsuits. Previously, the EEOC's Strategic Enforcement Plan delegated significant litigation authority to the General Counsel and Regional Attorneys. As a result, the Commission approved only 157 of 2,026 merits suits filed between 2009 and 2020, which is less than 8 percent of the total lawsuits filed.

II. EEOC Rescinds 2024 Harassment Guidelines

The EEOC also rescinded its 2024 Enforcement Guidance on Harassment in the Workplace (2024 Guidance). The 2024 Guidance came under fire in May 2025, when a Texas federal court in Texas, et al. v. EEOC, held that its definition of “sex,” which included sexual orientation and gender identity, was contrary to Title VII. In that decision, the court determined that the 2024 Guidance “contravene[d] Title VII's plain text by expanding the scope of ‘sex' beyond the biological binary” and “contravene[d] Title VII by defining discriminatory harassment to include failure to accommodate a transgender employee's bathroom, pronoun, and dress preferences.”

Additionally, President Trump issued Executive Order 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” in January 2025, which advocated for the use of “clear and accurate language and policies that recognize women are biologically female, and men are biologically male.” With this Executive Order, President Trump directed the EEOC to rescind conflicting portions of the 2024 Guidance.

The EEOC's recission of the 2024 Guidance follows the path laid by the Texas case and President Trump's recent Executive Order and indicates that the EEOC will not find reasonable cause for charges or discrimination based on gender identity. Despite this change, federal anti-discrimination laws remain in effect, and some federal courts may disagree with the EEOC's new assessment of Title VII's scope. Therefore, employers must remain mindful to follow these laws and otherwise work to prevent harassment in the workplace.

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