The Equal Employment Opportunity Commission (EEOC) and National Labor Relations Board (NLRB) started out 2026 by announcing several new procedural protocols and updated guidance and policy goals.
EEOC Revokes Harassment Guidance
On January 22, 2026, the EEOC voted 2-1 to revoke anti-harassment guidance previously approved by the EEOC in 2024. The guidance had defined for employers what constitutes harassment based on protected characteristics such as age, race, sex, religion and disability under federal law and had provided specific examples of workplace harassment.
At issue in the guidance was the section addressing gender identity and sexual orientation, which was added following the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County in which the Court found discrimination based on gender identity and sexual orientation is prohibited under Title VII of the Civil Rights Act of 1964. Relying on Bostock and other cases, the guidance provided examples of prohibited conduct based on gender identity, including the intentional use of a name or pronoun that an individual no longer uses, known as misgendering or using a person’s “deadname”, and denying bathroom access to an individual consistent with their gender identity.
Current EEOC Chair Andrea Lucas voted against the guidance in 2024 when she was a Commissioner with the EEOC. At that time, Chair Lucas explained her view that Bostock protects against discrimination based on an employee’s gender identity or sexual orientation but does not cover actions such as misgendering employees. At least one federal court agrees with Chair Lucas’s view of Bostock, as in May 2025 a Texas district court struck down the portions of the EEOC’s guidance dealing with misgendering, finding the EEOC overstepped its authority under Title VII and misstated the Court’s holding in Bostock.
Following the vote, which was held without a notice and comment period, Chair Lucas specified that “rescinding this guidance does not give employers license to engage in unlawful harassment,” clarifying that the EEOC “will continue to be dedicated to preventing and remedying unlawful workplace harassment.”
EEOC Votes to Require Commissioner Approval for New Litigation
In a procedural change, the EEOC recently voted to change its process for initiating or intervening in most discrimination litigation matters. Under the new procedure, Commissioners will have the authority to hold votes – within five or seven business days, depending on the type of case – to decide whether to initiate or intervene in litigation. This shifts power away from the EEOC’s general counsel and field office lawyers and, in most instances, eliminates their authority to bring cases on their own. The EEOC General Counsel will retain authority to commence litigation in limited circumstances, including in cases to enforce consent decrees, settlements, subpoena enforcement actions, temporary restraining orders and in instances where the EEOC lacks a quorum.
EEOC Chair Lucas described this change as returning to Commissioners the power entrusted to them by Congress in Title VII of the Civil Rights Act. Further, the resolution “enables the Commission to directly execute that authority in the vast majority of cases, with the transparency and accountability of the Commissioner’s voting process.” This change will likely allow the EEOC to present a more consistent litigation agenda and focus its attention on the current administration’s civil rights priorities, which may include challenges to employer Diversity, Equity and Inclusion (DEI) programs.
NLRB Implements New Unfair Labor Practice Intake Protocol
In December 2025, then acting General Counsel (GC) of the National Labor Relations Board William Cowen issued an agency-wide memorandum instituting new docketing protocols for a party filing an unfair labor practice charge. Under the new protocol, new charges will not be immediately assigned to an NLRB agent for investigation. Instead, charges will be placed on an unassigned case list and charging parties will have two weeks to submit initial supporting documents. After relevant supporting documents are submitted, the charge will be reviewed, and the Regional Office where the charge was filed will determine whether it is appropriate for assignment or whether the charge should be dismissed. Only after supporting documents are submitted, and the charge’s validity has been confirmed, will the charge be assigned to an NLRB agent for investigation. Certain charges, such as those related to existing cases and charges that may lead to requests to enjoin illegal activity, are exempt from this new protocol and will be immediately assigned to an agent for investigation.
Following some confusion over what exactly this new protocol requires, the NLRB clarified in a recent press release that the updated protocol “does not require charging parties to provide new categories of information or impose substantive burdens beyond prior practice.” The press release went on to explain that the two-week deadline for responding to preliminary information requests is consistent with longstanding agency practice, and Regional Offices will retain their flexibility to provide parties with additional time to gather documents where needed. Further, the standard for dismissing charges has not be altered under the new protocol. Rather, the new protocol will “improve efficiency and reduce delays caused by assigning cases to Board Agents who are already managing significant caseloads.” New NLRB General Counsel Crystal Carey, who was sworn in last month, stated her support for the updated protocol, and highlighted that this is the first of several upcoming operational changes coming to the NLRB “aimed at achieving quicker resolutions for all parties involved in the NLRB process.”
New NLRB General Counsel Declines to Issue “Mandatory Submissions to Advice Memo”
In her first public memo as General Counsel, Crystal Carey declined to issue a list of cases or specific topics she would like to see reconsidered or established by the Board. GC Carey declined to issue this “Mandatory Submission to Advice Memo” – as had been the longstanding practice of newly appointed General Counsel – and instead instructed the NLRB’s Regional Offices to adhere to the standard list of required submissions to its Division of Advice for more detailed consideration. These topics involve cases involving novel legal theories, remedies and instances where there is no existing NLRB law, among others.
General Counsel Carey made clear her priority is to address the backlog of cases pending before the NLRB. She cited the actions of the NLRB over the last several years as creating the backlog, including “constant shifts in priorities, impediments to settlements that all parties otherwise agree to, ever-changing demands on cases to be submitted to Headquarters for review, and an overarching lack of consistency in case process and enforcement across Regions.” General Counsel Carey signaled the Board will be issuing more operational guidance in the coming weeks “aimed at achieving consistent, fair and prompt resolution of charges across the Agency.”
We’ll continue to monitor and update on these and other developments at the EEOC and NLRB.
