EEOC Rescinds Recent Harassment Rhetoric
On Jan. 22, 2026, the Equal Employment Opportunity Commission (EEOC) voted to rescind its “Enforcement Guidance on Harassment in the Workplace.” The EEOC issued the now-rescinded guidance on April 29, 2024. The guidance consisted of the EEOC’s interpretation of Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act among others and covered a broad range of protected characteristics, such as race, sex, religion, age and disability. However, the portion of the guidance that had come under increased scrutiny centered on provisions related to gender identity, sexual orientation and reproductive rights. The guidance, which relied on the U.S. Supreme Court’s decision in Bostock v. Clayton County (you can read the opinion here), included examples of harassment, such as repeated misuse of an employee’s name or pronouns, or denial of access to restrooms and locker rooms consistent with an employee’s gender identity. Interestingly, instead of carving out just those portions of the guidance (those related to gender identity, sexual orientation and reproductive rights), the EEOC rescinded the 2024 guidance as a whole. At the end of the day, the EEOC’s guidance (or lack thereof) is just that: guidance. It does not provide the standard to which employers will be held by the courts—especially given the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo (opinion here). However, the EEOC’s decision to rescind its 2024 guidance provides some insight into how the EEOC will evaluate claims and approach enforcement. But then again, the EEOC’s new chair has been pretty open about the Commission’s new priorities (see here).
EEOC Says, “I’m the Decider” When it Comes to Lawsuit Selection
On Jan. 23, the EEOC issued a press release announcing that it had changed its process for initiating or intervening in most discrimination litigation matters. Under the new procedure, Commissioners will have the authority to hold votes on whether to initiate or intervene in litigation. This new resolution (which passed on a 2-1 vote) shifts power away from the EEOC’s General Counsel and field office lawyers, eliminating their authority to bring cases on their own, except in certain limited situations, including to enforce settlements, consent decrees, subpoena enforcement actions and temporary restraining orders. Otherwise, the General Counsel is simply responsible for “submitting cases to the Commission for a vote.” EEOC Chair Andrea Lucas described this change as returning to Commissioners the power entrusted to them by Congress, which will “further build” on work done in the first Trump administration to restore to the Commission panel the critical responsibility to authorize litigation.” You can read the full press release here. If you want to rewatch Andrea Lucas’s video, here you go.
FTC Still Hates Noncompetes
On Jan. 27, the Federal Trade Commission (FTC) held a workshop entitled, “Moving Forward: Protecting Workers from Anticompetitive Noncompete Agreements.” Dedicated subscribers to our updates will recall that on April 23, 2024, the FTC announced its ruling banning noncompetes. You can see the press release here, and you can read our article here. A federal court struck down the non-compete ban and the FTC eventually dropped its appeal, essentially abandoning the rule. However, the FTC’s recent workshop demonstrates that the FTC—even under the Trump administration—still has noncompetes in its crosshairs. In his opening remarks, FTC Chairman Andrew Ferguson announced that noncompetes with an “anticompetitive purpose” will attract enforcement. He acknowledged that there are circumstances where noncompetes may be justified for highly-skilled employees or those handling sensitive information. But the chairman cautioned that agreements meant to “simply protect the employer from competition” are unjustifiable. Instead, noncompete must serve “pro-competitive goals.” You can access agendas, transcripts and videos for the workshop here. Speaking of videos, you can see Andrea Lucas’s video here. And speaking of noncompetes, the Utah Legislature is currently considering a noncompete bill. You can read the current version HB 203 and see the bill sponsors here.
Utah Jury Awards $5mm Verdict in Retaliation Case
In case you thought that employment lawsuits weren’t “bet the company” claims, think again. A Utah federal jury just awarded an HR employee $5 million for her retaliation claim. In Graham v. Bristol Hospice Holdings, the plaintiff alleged that her former employer fired her because she filed a charge of discrimination with the EEOC and the Utah Antidiscrimination and Labor Division (UALD). Before the jury trial, Bristol Hospice moved for summary judgment, arguing that the plaintiff couldn’t tie its termination decision to any protected activity and that the company had a legitimate business reason for firing her. Savvy readers will know that in attempting to establish a causal connection in a retaliation claim, plaintiffs can (and often do) point to the temporal proximity between the adverse employment action and the protected activity.
In Graham, the plaintiff filed her charge of discrimination on March 28, participated in mediation on April 24, asked the UALD to dismiss her charge on April 30, and received notice that the UALD had withdrawn her charge on June 7. Bristol Hospice then terminated the plaintiff’s employment on July 13. Interestingly, the court held that, in addition to the date that the plaintiff filed her charge, the plaintiff’s participation in mediation “is a relevant date by which to measure temporal proximity.” The plaintiff also argued that the date that Bristol Hospice found out that the plaintiff’s charge had been withdrawn was a relevant date to measure temporal proximity because it “gave Defendant the ‘green light’ to retaliate.” The court reserved that issue for trial. The court also determined that it couldn’t rule as a matter of law that Bristol Hospice’s proffered reason for termination—that the plaintiff failed to comply with her supervisor’s directive and then lied about it—wasn’t pretextual because it wasn’t clear that the company had “conducted a fair investigation” into the matter. At trial, the jury concluded that “Bristol Hospice terminated Ms. Graham’s employment because of Ms. Graham’s protected activity.” The Jury awarded the plaintiff $75,000 for emotional distress and a staggering $5 million in punitive damages. While the court will likely apply the statutory cap of $300,000 (the company has more than 500 employees), the case provides a jarring reminder to employers to ensure that they (1) have and enforce anti-retaliation policies, and (2) conduct thorough investigations into employee complaints.
