Workplace Harassment After the 2026 Rescission

In 2024, the Equal Employment Opportunity Commission finalized updated workplace-harassment guidance for the first time in decades. Parts of that guidance were later vacated by a federal court, and on **January 23, 2026**, the EEOC announced that the Commission had **rescinded** the 2024 guidance. For Oklahoma employers and employees, the practical question is: what still matters now?

The answer is not that the rescinded document still governs. It does not. But rescission also does not make workplace harassment lawful. The Supreme Court's decision in Bostock v. Clayton County (2020), the Faragher/Ellerth affirmative-defense framework, and Title VII's prohibition on sex discrimination, 42 U.S.C. § 2000e-2, remain part of the legal landscape. Employers who treat the rescission as permission to ignore harassment complaints are taking a real risk.

Sexual Orientation and Gender Identity

The Supreme Court's 2020 decision in Bostock v. Clayton County held that firing an employee for being gay or transgender is discrimination "because of sex" under Title VII. That holding remains binding. Harassment tied to sexual orientation or transgender status can still support a sex-based hostile-work-environment claim when the facts meet the ordinary harassment standard.

The hardest edge cases need more care than the old guidance suggested. The EEOC's 2024 positions on restroom access and repeated intentional pronoun or name misuse were specifically targeted by the 2025 vacatur and then overtaken by the 2026 rescission. Employers should not rely on either extreme: do not assume every contested workplace interaction is automatically unlawful harassment, and do not assume gender-identity-related mistreatment is risk-free. Evaluate the facts, the severity or pervasiveness of the conduct, and current controlling law.

This extends to hostile work environment claims as well. A workplace where employees regularly make derogatory comments about a coworker's gender identity or sexual orientation, and where management does nothing to intervene, creates the same kind of hostile work environment liability that applies to any other form of harassment.

Pregnancy, Childbirth, and Related Conditions

Pregnancy, childbirth, and related medical conditions remain protected under federal law, including Title VII as amended by the Pregnancy Discrimination Act and the Pregnant Workers Fairness Act. Harassment or adverse treatment tied to pregnancy, childbirth, lactation, or related medical limitations can create legal exposure.

The practical implications are significant. Supervisors who make repeated comments about an employee's pregnancy, question whether a pregnant employee can "really handle" her workload, or create a hostile environment around lactation or pregnancy-related accommodations may expose the employer to liability. Abortion- or reproductive-decision issues are more legally sensitive after Dobbs and after the 2024 harassment guidance was vacated and rescinded, so employers should get case-specific legal advice before taking a hard position.

Remote and Hybrid Work Environments

Harassment law is not limited to in-person offices. Video calls, emails, chat messages, collaboration tools, and virtual meetings can all become part of a hostile-work-environment record when they target a protected characteristic and are severe or pervasive enough.

The principle is practical: if the conduct would matter in the office, it can matter on a video call or in a work chat. Employers need investigation procedures that preserve digital evidence — messages, emails, screenshots, meeting recordings when lawful and available, and platform logs — and that address cross-platform harassment across the tools employees actually use.

Social Media and Third-Party Conduct

Online conduct outside of work hours can still matter when it targets a coworker based on protected characteristics, becomes known in the workplace, and affects the working environment. An employee who posts derogatory comments about a colleague's race or religion on social media, and those posts are then circulated at work, may create a workplace problem even if the original post was made on personal time.

Employers may also face liability for harassment by non-employees — customers, vendors, contractors, and clients — when the employer knew or should have known about the conduct and failed to take appropriate corrective action. This is particularly relevant for customer-facing roles in retail, healthcare, hospitality, and food service. Revenue concerns do not make protected-class harassment something an employer can simply ignore.

What This Means for Oklahoma Employers

The rescission does not eliminate the need for current policies. Anti-harassment policies should be reviewed to address protected categories recognized by current law, remote and hybrid work environments, virtual communication platforms, online conduct that affects the workplace, and harassment by third parties including customers and clients.

Training programs should be practical rather than perfunctory. They should include realistic scenarios involving virtual workplaces, social media spillover, customer harassment, supervisor reporting duties, and retaliation risks. A policy that exists only in a handbook is weak evidence of prevention.

Manager accountability remains central. Supervisors who ignore or mishandle harassment complaints can expose the employer to direct liability. Managers should receive specific training on recognizing harassment, responding appropriately to complaints, escalating to human resources or legal counsel, and avoiding retaliation.

The Affirmative Defense: Faragher/Ellerth

Employers can avoid vicarious liability for supervisor harassment through the Faragher/Ellerth affirmative defense, which requires showing that the employer exercised reasonable care to prevent and correct harassment and that the employee unreasonably failed to use available complaint procedures. This defense requires proactive prevention — not just reactive response after a complaint. Updated policies, effective training, accessible and well-publicized reporting mechanisms, and prompt, thorough investigations are all essential components.

Outdated or incomplete prevention efforts are still a problem. An employer whose anti-harassment policy has not been updated in years, whose training consists of a short onboarding video, and whose complaint procedures are buried in a long handbook may have difficulty establishing the affirmative defense. The safer course is an accessible policy, multiple reporting channels, prompt investigations, and documented corrective action.

If you believe you've been subjected to workplace harassment — or if you're an employer who needs to update policies and training to meet current standards — we can help. At Addison Law, we advise both employees facing harassment and employers navigating compliance. Contact us for a consultation.

Frequently Asked Questions

Does this guidance apply to small employers?

Title VII generally applies to employers with 15 or more employees. Oklahoma's Anti-Discrimination Act may reach smaller employers, so small businesses should not assume they are outside harassment law. Coverage can depend on the claim and the statute, so employer size should be checked early.

Do we need new anti-harassment training?

If your training ignores current protected-category issues, including sexual-orientation and gender-identity harassment, virtual workplace problems, customer harassment, complaint handling, and retaliation, it should be updated. Outdated training provides weak evidence of prevention efforts and can undermine the Faragher/Ellerth affirmative defense.

What if an employee is harassed on their personal social media?

If the conduct targets a coworker based on protected characteristics and becomes known in the workplace — affecting the work environment — it may create employer liability. Context matters, including how widely the posts were shared, whether management knew, and whether the employer took corrective action.

Are we liable for customer harassment of our employees?

Potentially, if you knew or should have known and failed to act. The EEOC expects employers to protect employees from abusive customers and to train managers on when to intervene, even at the cost of losing a customer's business.

How does this interact with Oklahoma law?

Oklahoma's Anti-Discrimination Act parallels federal law in many respects and is enforced by the Oklahoma Attorney General's Office of Civil Rights Enforcement. The rescinded 2024 guidance is not the controlling source, but Title VII, Oklahoma law, and established harassment cases still require employers to prevent and correct unlawful harassment.

This article is for general information only and is not legal advice.