Litigating Race and Sexual Harassment Claims in 2026: Post-Rescission Standards, Arbitration Gateways, and Proving Pattern Harassment at Scale

This session rebuilds the harassment framework without an agency roadmap. On January 22, 2026, the EEOC rescinded its 2024 Enforcement Guidance on Harassment in the Workplace — the first comprehensive update to the agency’s harassment framework in more than twenty years — leaving counsel on both sides to reconstruct the severe-or-pervasive analysis from Harris v. Forklift Systems, Faragher, Ellerth, and circuit precedent, without the compliance checklist that shaped a decade of investigations, training programs, and Faragher/Ellerth defenses. State statutes, meanwhile, continue to supply a floor that in many jurisdictions sits well above federal law.

Attorneys will learn what the rescission removed and which authorities now control; how to run the severe-or-pervasive analysis and attack the Faragher/Ellerth defense from case law alone; what Muldrow’s “some harm” threshold does and does not change for hostile work environment claims; and how to choose among Title VII, Section 1981, and state statutes on damages caps, administrative exhaustion, limitations periods, and individual liability.

This session turns the framework into trial strategy, taught from inside the Tesla race harassment litigation. In November 2025, an Alameda County court denied class certification in Vaughn v. Tesla, holding that a jury could not reliably extrapolate from a sample of trial witnesses to a class of more than 14,000 Black workers. Plaintiffs’ counsel pivoted rather than appealed: more than 500 individual complaints have been filed, with over 900 planned. Forum fights are moving just as fast, as courts divide over how far the Ending Forced Arbitration Act reaches beyond the sexual harassment claim itself and what a plaintiff must plead to invoke it.

Attorneys will learn what the Vaughn court demanded on representative proof; how counsel restructured 900-plus claims into individual cases; how to build the pattern record through me-too evidence, investigation files, and the notice chain; how the EFAA and waiver doctrine decide the forum; and how to try emotional distress and punitive damages so the award survives post-trial review — drawing on the Diaz v. Tesla verdict, remittitur, and 2023 damages retrial.