©2026 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2026 EDITION | 36 1. Pregnancy, Childbirth, or Related Medical Conditions Sex based harassment based on pregnancy, childbirth, or related medical conditions “can include issues such as lactation; using or not using contraception; or deciding to have, or not to have, an abortion, if that harassment is linked to a targeted individual’s sex.” 100 Examples provided include: (1) Scrutinizing a pregnant woman’s bathroom usage; (2) Interfering with and making inappropriate comments about a woman’s use of a lactation room; and (3) Complaints about pregnant women always getting “special perks.” 101 2. Harassment in Virtual Work Environments As with conduct within a physical work environment, conduct within a virtual work environment can contribute to a hostile work environment. This can include, for instance: Sexist comments made during a video meeting; (2) Racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting; and (3) Sexual comments made during a video meeting about a bed being near an employee in the video image.102 3. Scope of Hostile Work Environment Claims Conduct that can affect the terms and conditions of employment, even though it does not occur in a work related context, includes electronic communications using private phones, computers, or social media accounts, if it impacts the workplace.103 Given the proliferation of digital technology, it is increasingly likely that the non-consensual distribution of real or computer generated intimate images using social media can contribute to a hostile work environment, if it impacts the workplace.104 However, following President Trump’s inauguration in January 2025, the EEOC worked swiftly to undermine the changes made by the Biden administration and included in the 2024 guidance. For example, one of the first executive orders signed by President Trump was Executive Order 14168, or more commonly known as “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” 105 This order directs federal agencies to enforce laws governing sex-based rights and to remove all statements, policies, forms, and communications promoting gender ideology.106 Further, the EEOC removed online guidance resources pertaining to LGBTQ workers protections, including the removal of several pages of resources relating to the Supreme Court’s landmark decision in Bostock v. Clayton County.107 While the removal of these materials does not change Bostock’s holding that Title VII covers sexual orientation and gender identity, such actions signaled that the EEOC’s pursuits under the Trump administration would be vastly different than that under President Biden. Further, in May 2025, a Texas federal judge vacated key portions of the EEOC’s April 2024 workplace harassment guidance, ruling that provisions addressing gender identity—such as restroom access, dress codes, and pronoun usage—exceeded the agency’s statutory authority under Title VII.108 The decision, stemming from a challenge by Texas and the Heritage Foundation, aligns with broader efforts to limit gender identity protections and leaves employers navigating a patchwork of obligations under Bostock v. Clayton County and state or local laws. 100 U.S. Equal Employment Opportunity Commission, Enforcement Guidance on Unlawful Harassment in the Workplace, see supra note 1, at 15. 101 Id. at 16. 102 U.S. Equal Employment Opportunity Commission, Enforcement Guidance on Harassment in the Workplace, at 53. 103 Id. at 54. 104 Id. at 55. 105 See U.S. Equal Employment Opportunity Commission, Removing Gender Ideology and Restoring the EEOC’s Role of Protecting Women in the Workplace (January 28, 2025), https://www.eeoc.gov/newsroom/removing-gender-ideology-and-restoring-eeocs-role-protecting-women-workplace. 106 Id. 107 Id. 108 See U.S. Equal Employment Opportunity Commission, Federal Court Vacates Portions of EEOC Harassment Guidance, (May 20, 2025), https://www. eeoc.gov/newsroom/federal-court-vacates-portions-eeoc-harassment-guidance.
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