NOTE: The below transcript is a draft. The finalized transcript of this meeting is being reviewed for accuracy and will be posted shortly.

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

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COMMISSION MEETING

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OPEN SESSION

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THURSDAY, JANUARY 22, 2026

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PRESENT:

ANDREA R. LUCAS                  Chair

KALPANA KOTAGAL              Commissioner

BRITTANY PANUCCIO           Commissioner

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This transcript was produced from audio captured by the Equal Employment Opportunity Commission.

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PROCEEDINGS:

10:08 AM

CHAIR ANDREA LUCAS: Good morning. Welcome to this meeting of the Equal Employment Opportunity Commission on a critical issue involving our important work of preventing and remedying discrimination in our nation's workplaces, and to restoring even-handed enforcement of civil rights on behalf of all Americans.

I'm going to do a short welcome, and then we'll have an Office of Legal Counsel presentation. I'm pleased to be joined today by my colleagues, Commissioner Kalpana Kotagal and Commissioner Brittany Panuccio. I also want to welcome the agency staff and members of the public who are joining us today, whether in person or on the audio line.

Pursuant to the Sunshine Act, a week ago, the Commission issued notice of three items that were for consideration on the agenda for today's meeting. We will be covering one of them substantively, and then two of them, as I'll discuss at the end of our time here, were resolved by notation vote. So, we'll acknowledge those votes. However, we will not be debating those latter two items.

Before we begin consideration of the first and primary item on the agenda, we'll hear from our legal counsel, our Acting Legal Counsel, who will give a short statement on the state of the Sunshine Act, and then we'll proceed to opening statements. And then, after opening statements, we'll proceed to the first item. You have two rounds of discussion from each Commissioner. In the first round, I'll make a motion to introduce the matter and then provide a summary commentary on that matter. And then I'll turn to my fellow Commissioners to each have five minutes to address the matter or the question on their own.

All right, with that stated, we'll go again. I'm glad that we can all be here. I hope we'll have a cordial meeting. This is an issue where there are strong feelings, and I'm confident that we'll have a good, organized discussion. I'll turn it over to our Acting Legal Counsel, Ray Peeler, to give us a statement on the Sunshine Act. Thank you.

EEOC ACTING LEGAL COUNSEL RAYMOND PEELER: This meeting of the Equal Employment Opportunity Commission was noticed pursuant to the requirements of the Sunshine Act. It is open to the public, and as such, the Commissioners are free to deliberate, consistent with the order of the proceeding. The public was invited to listen to the deliberations of the Commission in person or via a calling line. However, remarks and questions will not be taken from the audience.

CHAIR LUCAS: Thank you. Now we will turn to opening statements, and I will begin. Today, the Commission will consider whether to rescind its 2024 Enforcement Guidance on Harassment in the Workplace. I want to highlight one thing in my opening remarks today. I want to dispel the notion that rescinding the 2024 harassment guidance, if the Commission so chooses to do so by a majority of votes, doing so will not leave a void where employers are free to harass wherever they see fit, leaving a trail of victims in its wake. It's important to acknowledge at the outset that this guidance document, although approved by the majority vote of the Commission, cannot create any harassment protections for employees that they do not already enjoy under federal case law. This is not disputed. I will address shortly that the EEOC does not have substantive rulemaking authority under Title VII. Therefore, employees will not lose any rights or remedies if this guidance document is rescinded. Confusion and, frankly, fearmongering about this undisputed point is unhelpful and is wrong.

The EEOC, and I as Chair, is committed to combating harassment. And under my leadership, the agency has done so publicly and aggressively. Under my tenure, and as a result of the Commissioner's charge I filed during the prior administration alleging systemic antisemitic harassment, the agency recovered a record $21 million in a settlement for Jewish employees at Columbia University. The irony is striking that some of my peers across the aisle, including former Commissioners and former Chairs, who have spoken publicly about the alleged implications of today's vote, were notably silent when the Commission secured one of the largest harassment recoveries in its history. As a result of a charge I brought. And it remains silent still on much of the good work the agency is doing and has done to combat harassment during this second Trump administration.

These are only just a few examples. Earlier this month, the EEOC settled a sexual harassment lawsuit against KFC for $200,000. In December, we settled the sexual harassment lawsuit against a restaurant chain for over $600,000 for a class of women. In November, we settled a sexual harassment lawsuit against a restaurant and casino, and we recovered $1.2 million for a class of male and female employees. In September, we also settled a racial harassment lawsuit for close to $200,000. In June, we settled a harassment lawsuit against a fast-food franchisee, recovering $300,000. And in March, we resolved a sexual harassment lawsuit against a janitorial company, resulting in $400,000 for victims and broad injunctive relief.

These public recoveries are just a small fraction of the agency's recoveries in this space. And many of these resolutions stem from charges filed long before the 2024 guidance. Implying that rescinding the guidance document eliminates harassment liability under Title VII, or will endanger workers' rights under Title VII or any other statutes that we enforce, is absurd and underscores the document's lack of utility and the confusion that it begets. Worse, those kinds of implications, made by some members of the public or former members of the Commission's workforce, undermine the brave victims who have come forward before the document's creation, and discredits the hard work of our career staff.

Let me be perfectly clear. The EEOC will not tolerate unlawful harassment, as was the case before the guidance document was issued and will remain so even after the guidance document is rescinded. Thank you. I'll turn it now to my fellow Commissioner Kotagal.

COMMISSIONER KALPANA KOTAGAL: Thanks, Chair Lucas, and thanks to the members of the public for being here. You may not have the opportunity to speak today, but your presence here matters, and I'm grateful for it. I come to these issues as a former litigator, and through my former clients, I have seen firsthand how workplace harassment can derail people's lives. It impacts their careers, as well as their family and well-being. Often, they feel they have no choice but to quit their jobs, taking lesser-paying roles that exacerbate gender and racial inequalities. Now, as a Commissioner, I have even greater visibility into our nation's workplaces, seeing clearly that harassment remains a serious problem. In fiscal year '24 alone, the last year for which we have full data, 40% of the charges the EEOC received included allegations of harassment. And for many of these workers, the EEOC is the last bulwark against egregious misconduct, and the only opportunity to vindicate their rights.

This is why I've been so proud to support the EEOC's “Enforcement Guidance on Harassment in the Workplace.” For the first time in 25 years, the EEOC, the authoritative agency on these issues, provided comprehensive guidance, clarifying the legal standards for harassment claims and employer liability. Critically, the guidance provides information to workers so that they can know their rights and enables employers, particularly small businesses, to know their responsibilities, thereby improving the safety of all workplaces. It pulls back the curtain on modern-day harassment, which is too often shrouded in secrecy, by highlighting more than 75 practical examples rooted in the case law. The guidance addresses harassment on all bases: race, color, sex, national origin, religion, age, disability, and genetic information. It uplifts the experiences of some of the most marginalized workers, including survivors of gender-based violence, pregnant workers, immigrants, individuals with intellectual and developmental disabilities, and more.

And it reflects important developments in the law, including the Supreme Court's recognition in Bostock v. Clayton County that discrimination based on sexual orientation or gender identity is a form of sex discrimination, as well as emerging issues like online harassment. The guidance also explains what constitutes effective anti-harassment policies and training, so that employers can help prevent harassment before it occurs. And finally, I think it's very clear that the guidance benefits from the agency's considerable expertise, gleaned from decades of investigating, conciliating, and litigating these complex cases. In fact, this document was ten years in the making, having been sent out twice for public comment, once in 2017 and again in 2023, building on the work of the agency's Bipartisan Select Task Force on the Study of Harassment in the Workplace, which was co-chaired by former Commissioners Chai Feldblum and Vicki Lipnic.

I'm deeply disappointed that the agency is poised to rescind the Harassment Guidance today, in full, without public notice and comment. For the first time in nearly 40 years, the agency will leave the public with no explanation of harassment from the authoritative agency. It will also leave EEOC staff with no Commission-approved resource for outreach and education or for investigative and enforcement efforts. There's no compelling reason to rescind the Harassment Guidance in its entirety. The guidance is 190 pages long. Instead of adopting a thoughtful and surgical approach to excise the sections the majority disagrees with or suggest an alternative, the Commission is throwing out the baby with the bathwater. Worse, it's doing so without public input. Last week, we heard promises of transparency. To that end, why not give the American people a voice? The agency received nearly 38,000 comments in promulgating this guidance. Yet, the Commission is poised to rescind the Harassment Guidance with no opportunity for the American people to voice their opinion.

Since there is no opportunity for public comment, I want to take a moment to share the story of an employee on a hog farm who was subjected to grotesque sexual harassment. Her employer permitted a coworker to expose his genitals to her and grope her intimate body parts without consent. She was repeatedly intentionally deadnamed by leadership and endured explicit sexual comments and advances. The behavior became so severe that the employee was forced to quit, robbing her of her livelihood. In 2024, the EEOC filed a lawsuit on behalf of this transgender employee, only to abandon her later in court. These are some of the workers who will be hurt by this rescission. Fundamentally, all workers deserve to be treated with dignity and respect. Thank you.

CHAIR LUCAS: Thank you, Commissioner Kotagal, and I turn it over to Commissioner Panuccio for her opening statement.

(crosstalk, resolving audio issues)

COMMISSIONER BRITTANY PANUCCIO:

Thank you, Chair Lucas. Good morning. As Chair Lucas explained, we are gathered to discuss whether to rescind the EEOC's 2024 Harassment Guidance. And before diving into the particulars of that guidance, I want to recognize the important work of our frontline staff in addressing claims of workplace harassment. Over the past five years, the EEOC has seen a marked increase in the number of harassment charges filed and resolved. In fiscal year 2024, the last year for which we have full data, almost 36,000 signed charges were filed, alleging harassment—a 68% increase over the number of charges filed in 2021. In fiscal year 2024, our frontline staff resolved almost 34,000 charges, over 6,000 of which were merit factor resolutions, which recovered over $211 million in monetary benefits for charging parties. And I anticipate that in fiscal year 2025, our first year under the leadership of Chair Lucas, that both harassment and charge receipts and resolutions will exceed those from the previous year. Thank you to our dedicated staff who work tirelessly to prevent and remedy workplace harassment.

I want to echo Chair Lucas. We are not here to press the brake pedal on the EEOC's enforcement of statutes prohibiting workplace harassment, including Title VII, the ADA, ADEA, GINA, and the PWFA. Workplace harassment that violates those laws remains illegal, with or without the 2024 Harassment Guidance. Binding Supreme Court precedent explains federal prohibitions against harassment. And our staff continue to investigate, mediate, and litigate workplace harassment cases. That will remain the same tomorrow if we rescind the guidance today. It is my hope that with increased clarity and awareness, we can redouble our efforts to prevent and remedy workplace harassment. Thank you.

CHAIR LUCAS: Thank you, Commissioner Panuccio. (crosstalk, audio adjusting) All right, moving on. We'll move on to the consideration of the first and primary issue before us. And so, with round one, I will make the motion and then have a short discussion of the motion with my five minutes. So, I make a motion to adopt the rescission of the Enforcement Guidance on Harassment in the Workplace. Is there a second? All right, I see Commissioner Panuccio saying something, but we need to get the audio fixed. So... Apologies. One more minute, please. Unless our Legal Counsel wants to say that a thumbs up will constitute a second, I think we probably want to wait for an oral acknowledgment. All right, please give a try.

COMMISSIONER PANUCCIO: I second the motion.

CHAIR LUCAS: Thank you. Now that we have a motion on the floor, we'll move to discussions. We're hearing that echo. Still hearing that echo. Okay, I'm still here right now. (crosstalk, audio adjusting) Okay, I think we got it. All right. Is it possible to restart the clock, given that... I appreciate that. All right, the motion having been seconded, I'll move to the discussion of the rescission order.

Despite the document's intended purpose to, quote unquote, 'provide clarity,' public confusion about the Enforcement Guidance document’s role is widespread. Congress enacted Title VII to prohibit employment combat discrimination. Among other things, Title VII specifically forbids employers to discriminate against an employee because of their sex. The Supreme Court has found this prohibition includes harassment. Title VII only provides the EEOC with the authority to issue procedural regulations—basically, quote unquote, 'procedural regulations,' not substantive regulations. So, what does that mean? It means that unlike other agencies in other areas, or our agency and other statutes, like the Americans with Disabilities Act, we do not have the ability to make a legislative rule. We cannot make affirmative statements of policy interpreting Title VII. We can only make procedural rules that allow us to implement what Congress has set out. And this was a conscious and thoughtful decision by a bipartisan Congress in the 1960’s. The prohibitions provided in Title VII were so charged that only Congress, the elected body, was the one who would be making the rules here, not the Commission. We need to understand our place. And despite that, the Commission has strayed from those bright line rules around the authority that we have here.

To understand the origin of the 2024 Harassment Guidance, it's important to revisit some of its long and unwieldy history. In June 2021, during the Biden administration, following Bostock v. Clayton County, then EEOC Chair Charlotte Burrows issued first a unilateral technical assistance document, not approved by the Commission, that, quote unquote, purported to summarize, quote, 'what the Bostock decision means for LGBTQ+ workers and all covered workers and for employers across the country,' end quote. 'The EEOC has established legal positions on LGBTQ+ related matters, as voted by the Commission,' end quote. Among other things, that technical assistance document opined that as a result of Bostock, employers must provide trans identifying employees individuals access to single-sex spaces, such as bathrooms, locker rooms, changing rooms, et cetera, in accordance with their quote unquote 'gender identity,' and that quote unquote 'misgendering' could constitute harassment. Notably, Bostock did not state any such thing.

The agency was subsequently sued by the state of Texas in the Northern District of Texas, and the court there found, quote, “that Texas’ reading of Bostock tracks Justice Gorsuch’s words and reasoning that 'Title VII prohibits employment discrimination because of sexual orientation or gender identity status—i.e., being homosexual, being transgender—but not necessarily all related conduct,' ” end quote. The district court, therefore, concluded that despite the agency's characterization of the document as technical assistance, the documents were, in fact, unlawful, substantive legislative rules that, quote, 'imposed new duties and changed the text of the statute it professed to interpret.' As a result, the court vacated that technical assistance document. Unbowed, a few years later, the Commission by majority vote implemented exactly essentially the same things the court had already vacated in the Enforcement Guidance.

They repackaged it in this 2024 Harassment Guidance. Again, just like in the 2021 Technical Assistance that was vacated, the 2024 document purportedly was intended as a resource document to, quote, 'provide clarity to the public as to their existing rights.' But despite this allegedly benign intent, the guidance continued down the same path as the 2021 [Technical] Assistance, and expanded the text Title VII, exceeding our congressionally limited authority to issue procedural regulations. And then, yet again, we were sued and a court vacated it in full this year.

Despite being allegedly a resource document, the EEOC also proceeded to cite this document repeatedly in briefing before courts, over and over again, to take the positions the agency had taken in that document. Harassment is abhorrent. It's also highly fact dependent. We are purporting to do something that is uniform and comprehensive. That word has been said multiple times, 'comprehensive resource documents.' It cannot be comprehensive. It took us ten years to create this document. It has been struck down, and we cannot even remove a portion of what was vacated by a court. There's no way we can capture the extreme mosaic that is highly fact-dependent in a singular document. And for us to spend years revising this, to promptly be moved is not something that serves the public well. Commissioner Kotagal, the floor is yours.

COMMISSIONER KOTAGAL: Madam Chair, I rise to speak. I appreciate the majority's representation that enforcing workplace harassment remains a priority. To that end, I think there's a real question here about why it's necessary to rescind without notice and comment. When issuing the guidance, the EEOC received 38,000 public comments, which helped to make the document more robust. Those 75 examples that I discussed earlier, I do think, actually represent the mosaic, the fact dependency of this work. Today, we're poised to rescind the guidance without public comment. From my perspective, notice and comment is required under the Administrative Procedure Act, and you don't have to take my word for it. When the Harassment Guidance was issued, my colleague, then Commissioner Lucas, argued that it was a substantive rule. Since then, the U.S. District Court for the Northern District of Texas has agreed, vacating the sexual orientation and gender identity sections. The EEOC declined to appeal and instead shaded out the applicable sections on our website. Setting aside my robust disagreements with the merits of the ruling and its reasoning, I remind my colleagues that by the court's logic, the guidance is a substantive rule. Under the APA, substantive rules must be rescinded through notice and comment procedures. Further, in Perez v. Mortgage Bankers, the Supreme Court held that the APA mandates that agencies use the same procedures when they repeal a legislative rule as when they issue the rule in the first instance. Here, that would be notice and comment.

While the majority, I believe, and Chair Lucas has spoken to this, will be quick to point out that we don't have substantive rulemaking authority under Title VII, I would note that we do have such authority under the ADA, the ADEA, and GINA, statutes that the enforcement guidance covers as well. Notice and comment is also required under our procedural regulations. Again, you don't have to take my word for it. In a February 2025 joint brief to the Northern District of Texas, the EEOC said, and I quote, 'To rescind or revise portions of the guidance, the Commission will have to follow the notice and comment procedures for significant guidance documents set forth in 29 CFR part 16, section 1695.6. Which, except in limited circumstances, requires the Commission to put the document out for a period of notice and comment of at least 30 days,' end quote.

Now, the Chair, in consultation with OIRA, has found good cause to believe that notice and comment is impracticable, unnecessary, or contrary to the public interest. In the APA context, the DC circuit has repeatedly held that the good cause exception is not, and I quote, 'an escape clause that may be arbitrarily used at an agency's whim,' end quote, but rather is limited to emergency situations. None such situation exists here. The public has great interest in this document, and the agency has plenty of time to follow proper procedure, allow the public to weigh in, and respond to public comment about why it agrees or disagrees with comments. Good government principles also compel the agency to follow notice and comment. As an agency, we should be committed to maximum transparency and accountability.

And so, I ask, what are we afraid of? Why not give the American public, the people, to speak? Perhaps it's that the people will speak about the importance of this resource or ask the agency to adopt a more targeted approach. I fear that the agency is deprioritizing the American people, and to that end, I have several motions.

First, I move to postpone consideration of the rescission of the Harassment Guidance until the document can be put out for a period of notice and comment of at least 30 days.

CHAIR LUCAS: Is there a second on the motion?

COMMISSIONER KOTAGAL: Next, I move to postpone consideration of the rescission of the Harassment Guidance until the Commission can hold a public hearing to allow workers, employers, advocates, HR professionals, and others to speak on the record on these issues.

CHAIR LUCAS: Is there a second on the motion?

COMMISSIONER KOTAGAL: Finally, in the interest of transparency, I move to make public the directive explaining the reasons for the rescission of the Harassment Guidance upon the conclusion of this vote.

CHAIR LUCAS: Is there a second on the motion?

COMMISSIONER KOTAGAL: Thank you. I yield back the balance of my time.

CHAIR LUCAS: Thank you, Commissioner Kotagal. Now I turn to Commissioner Panuccio for her five minutes in the discussion period.

COMMISSIONER PANUCCIO: Thank you, Chair Lucas. In my view, there are several independent and sufficient reasons for the Commission to rescind the 2024 Harassment Guidance. And I'd like to use my time to highlight three of them. First, the guidance was an impermissible substantive rulemaking. As Chair Lucas explained, under Title VII, the EEOC's statutory authority to issue rules is limited to procedural matters. And the Supreme Court has long recognized that the EEOC lacks authority to issue substantive rules. The 2024 Harassment Guidance is an impermissible act of substantive rulemaking under Title VII.

Second, the guidance has been successfully challenged in multiple lawsuits, and portions of the guidance have been vacated nationwide. In May of 2025, a federal district court vacated portions of the guidance, holding that the EEOC had 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 concluded that the 2024 Harassment Guidance is contrary to law because it contravenes Title VII's plain text by expanding the scope of sex beyond the biological binary of male and female. It contravenes Title VII by defining discriminatory harassment to include failure to accommodate a transgender employee's bathroom, pronoun, and dress preferences. Notably, the court found that the EEOC had, in fact, exceeded its statutory authority by issuing an unlawful substantive rule in the form of a guidance document.

Two other relevant cases are Catholic Benefits Association v. Lucas and James Dobson Family Institute v. Kennedy. Catholic Benefits Association involves the 2024 Harassment Guidance and the EEOC's PWFA regulations. The district court in that case issued a permanent injunction barring the EEOC from, among other things, interpreting or enforcing Title VII in a manner that would require the plaintiffs to speak or communicate in favor of abortion, fertility treatments, or gender transition when such is contrary to the Catholic faith. Similarly, in James Dobson Family Institute v. Kennedy, a district court permanently enjoined the EEOC from interpreting Title VII in a manner that would require the plaintiffs or member organizations, on whose behalf they sued, to speak in favor of or refrain from speaking against chemical or surgical abortion, immoral infertility treatments, or gender transition, when such is contrary to the plaintiffs' or their members' religious beliefs. The existence of these multiple court decisions, with varying scopes of relief—some remedies limited to the named plaintiffs and others vacating portions of the guidance on a nationwide basis—and which question the EEOC's authority to even issue the guidance, creates confusion and uncertainty for the public and our stakeholders, trying to understand whether aspects of the 2024 guidance may be invalid.

And third, finally, the President has directed us to rescind the guidance in Executive Order 14168. And that states that each agency head shall review and rescind all guidance documents inconsistent with the requirements of the Order. And one subsection specifically identifies this Harassment Guidance as among the documents under consideration. So, in light of those three sufficient and independent reasons, it is prudent to rescind the guidance. Thank you.

CHAIR LUCAS: Thank you, Commissioner Panuccio. Now we'll move to a second round of discussion, and reserving my time for this round, I will speak last. So, I'll turn it over to Commissioner Kotagal for her second round of discussion. Thank you.

COMMISSIONER KOTAGAL: Thanks. To the extent that the Executive Order applies, which I don't concede, it directs the EEOC to rescind the guidance in whole or in part. The Commission today is choosing to rescind the guidance in its entirety, despite the fact that the sexual orientation and gender identity sections of the guidance, that both of my colleagues have spoken about, have already been vacated by a district court. Disagreements over those sections don't explain why the agency would go further and rescind the entire guidance, which explains harassment across all protected bases. It includes a wide range of real-world examples, from employees being called racial slurs or epithets, to employees contending with antisemitic graffiti, or being harassed for being older, for needing religious accommodations, or for contending with a disability. All of these discussions will be gone.

I want to speak briefly about Bostock, which states explicitly, and I quote, 'that it is impossible to discriminate against a person for being homosexual or transgender, without discriminating against that individual based on sex.' The Supreme Court has long held, going back to 1986, that harassment is a form of discrimination. The position that gay or trans individuals are protected from hiring or firing discrimination, but not from harassment, doesn't make sense. All of us care about privacy and public safety. That's why it's illegal in every state to enter a restroom and to hurt someone; protecting transgender people from discrimination doesn't change that. There's an unfounded assumption, I think, underlying some of this, that trans people are dangerous. But more than 400 cities and 22 states have laws that protect trans people from discrimination when it comes to using the bathroom that matches their gender identity. And there's been no increase in public safety incidents in restrooms in any of these places. That's why over 160 anti-sexual assault and domestic violence organizations have signed a letter in support of these laws and policies, noting that they do not threaten women's safety.

The EEOC's own longstanding position, established in a 2015 federal sector case called Lusardi v. Department of the Army, is that the denial of bathroom access, consistent with one's gender identity, is unlawful disparate treatment based on sex. Separately, other courts have held that repeated and intentional use of a name or pronoun that's inconsistent with a person's gender identity can contribute to a hostile work environment. It's that kind of repeated, intentional disrespect, not forgetfulness or mistake, that we're talking about here.

I can't help but note that the guidance is being rescinded under the guise of protecting women in the President's Executive Order. But perhaps it's this rescission that hurts women the most of all. Sixty percent of women report experiencing sex-based harassment, and at the height of the #MeToo movement, millions bravely came forward to share their stories, exposing harassment as an abuse of power. The EEOC rose to the occasion by promulgating the guidance being rescinded today, which strives to make workplaces safer for everyone. The guidance includes stories like those in Example 54, about Rosa, a farm worker who is stalked and sexually assaulted by a coworker, or Example 60, about Paloma, a housekeeper who's propositioned by a guest. There is Example 58, about Anne, whose coworker distributes intimate images of hers, and Example 31, about Maria, a survivor of domestic violence. There's Example 23, about Dara, who's harassed because she's a mom, and Example 9, about Aiko, who's told that construction is a man's job. Then there's Example 11, about Kendall, who's harassed for being pregnant, and Example 12, about Lisbet, who's harassed for lactating. I could go on and on. From my perspective, it's hard to reconcile the stated interest in protecting women with today's expected rescission of guidance that actually protects women.

I suggest an alternative. The EEOC has a great bipartisan tradition of cooperation on harassment issues, including the work of the select task force on the study of harassment in the workplace, which was co-chaired by former Commissioners Feldblum and Lipnic. Rather than racing to rescind the guidance, I move to postpone consideration of the rescission until a new task force on workplace harassment can be formed, co-chaired by Commissioner Panuccio and myself, to suggest a bipartisan path forward.

CHAIR LUCAS: Is there a second for the motion?

COMMISSIONER KOTAGAL: I thank the EEOC staff who helped to put on this hearing today, and those who worked tirelessly on this guidance, and those who continue to work to enforce the law. Know that your efforts are not for naught. You made a difference. Thank you.

CHAIR LUCAS: Thank you, Commissioner Kotagal, and I now turn to Commissioner Panuccio for her second round of five minutes of discussion.

COMMISSIONER PANUCCIO: Thank you, Chair Lucas. I'd like to begin by responding to a couple of points that my colleague raised. First, why a complete rather than a partial rescission or revision? I believe it would be a disservice to employers, employees, and other stakeholders for the Commission to do a partial rescission or revision rather than a complete rescission. And here are a few reasons why. First, as I've discussed earlier, the guidance is suspect in various respects, and multiple courts have found it to be so. Second, it's likely already partially outdated, only two years after its publication. And by the time we as a Commission publishes a revision, it would be even further outdated, which leads me to my next reason.

The marketplace is filled with private sector resources on anti-harassment law, and those resources can be updated on a real-time basis much more quickly and fill that gap to provide that analysis as the case law continues to evolve. And finally, having the guidance in place, or doing a partial rescission, poses the risk of confusing the public about the scope of the Commission's authority to interpret Title VII substantively—authority which this Commission does not have.

The second point I'd like to respond to is the suggestion that rescinding this guidance means that we are somehow going soft on harassment. I'm deeply invested in preventing and remedying harassment, especially sexual harassment. But we will do so in the right way: through our enforcement, litigation, and training programs. Not by issuing guidance documents that exceed our authority, contravene the plain meaning of Title VII's text, and sow confusion.

Lastly, Commissioner Kotagal shared a number of stories in her comments today, and I'd like to share a story, too. And this story is about a young woman who worked at a gym, and one day walked into the women's locker room and saw a man in the women's locker room. And this young woman happened to be a rape survivor, and was shocked and uncomfortable, and so disconcerted about this experience that she did not feel comfortable going into the locker room at her place of employment and never went back into that locker room again. And this young woman was me. So, I speak to this issue from my own personal experience, from my professional experience, and I want to emphasize that we are deeply invested in preventing and remedying harassment and protecting women. Thank you.

CHAIR LUCAS: Thank you, Commissioner Panuccio. I'll try to be relatively brief for my final section. My colleague, Commissioner Kotagal, says that the guidance document protects women. But it cannot, because, again, we do not have authority under Title VII. The portion that applies to women and harassment against women involves exclusively Title VII, and we don't have substantive rulemaking. The Commission can protect women by enforcing the law—the law that the courts have set out, the law that Congress has set out in the statute. And we will, and we will continue to do so, through the charges we receive, the investigations that we conduct, the recoveries that we acquire through conciliation, through settlements, and through lawsuits. We will do all of those things, but those things will come from the lawful authorities that set it out, not through an unlawful attempt to expand or seize power that we do not have. And the fact that there is this perception that this document is going to be the thing that protects women illustrates perfectly the confusion that it has created. But this document can be lawfully no more than a hornbook, and we should not be contorted into being bound by requirements because we unlawfully attempted to create a legislative rule.

My colleague also mentions Perez, and the Supreme Court there states that where a document lawfully did not require any notice and comment, the fact that it chooses to engage in notice and comment cannot require it to go back through notice and comment in rescinding it. Perez says that that rule is categorical under the APA for an interpretive rule, which, again, is the maximum that our document could be with respect to the Title VII portions, because we do not have legislative authority here. We only have procedural authority. The maximum our portions of this document could be, under Title VII, is an interpretive rule. And again, Perez says it is a categorical exception that interpretive rules do not need to be rescinded by public notice and comment. Some, the public, my colleague, may not appreciate that, may not like that, but that is the rule the Supreme Court set out for us. And the fact that the Commission unlawfully attempted to contort itself into a substantive rule, attempted to grab authority that it did not have, should not be then license for requiring us to unwind this in that manner. Two wrongs should not make a right here.

Again, I thank Commissioner Panuccio for her vulnerability in sharing her personal experience. And I thank Commissioner Kotagal for her passion for protecting women. While we disagree with the policies here, while we disagree with the action that they'll take here, I am confident that all three of us do care about combating harassment, and even if we are going to likely vote differently, I appreciate your passion. And I think that we will continue to work together to protect women and to protect workers from harassment, regardless of if we vote differently here. With that, I will yield back my time, and we'll turn to a vote on the motion.

Now the discussion is concluded, I call the question for a vote. The motion to be voted on is to adopt the rescission order regarding the Enforcement Guidance on Harassment. We go to a roll call vote for the purpose of the record.

Commissioner Kotagal, how do you vote?

COMMISSIONER KOTAGAL: I vote no.

CHAIR LUCAS: Commissioner Panuccio, how do you vote?

COMMISSIONER PANUCCIO: I vote yes.

CHAIR LUCAS: And I vote yes. Motion to adopt the rescission order regarding the Enforcement Guidance on Harassment of the Workplace is approved by a vote of 2 to 1. The second item, and their items, will be short, but since we noticed them for the Sunshine Act, we will address them directly on the record.

The second item on our agenda was the resolution concerning the Commission's authority to commence or intervene in litigation. While that matter was originally listed to be considered for potential approval in this meeting, it has already been addressed by a notational vote, which concluded on January 21, 2026. The matter was approved 2 to 1, with myself and Commissioner Panuccio voting in favor, and Commissioner Kotagal voting no. Consistent with the EEOC's practice of posting monthly summaries of any Commission votes, the EEOC will provide information on the website regarding this vote and its outcome.

And the third item on our agenda was the obligation of funds requiring Commission approval. As with the prior one, while this was originally listed to potentially be considered at this meeting, the matter has been addressed by notational vote, which concluded yesterday, on January 21, 2026. That matter also was approved 2 to 1, with myself and Commissioner Panuccio voting in favor. Commissioner Kotagal voted no. And as with the prior matter, consistent with our practice of posting monthly summaries, we'll provide that information on our website.

With no further matters listed on our agenda, I move to adjourn the meeting.

COMMISSIONER KOTAGAL: I second.

CHAIR LUCAS: Thank you. This meeting is concluded.

(Whereupon the above-entitled matter went off the record.)