By: Robert Brody and Matthew Chiota
In April 2024, the EEOC narrowly approved a new Guidance on harassment in the workplace. Now it has been struck down and an Executive Order provides contrary information.
The Guidance broadened the scope of sex discrimination by:
- Expanding the definition of sex to include both sexual orientation and gender identity;
- Including sexual orientation and gender identity as a protected class under federal law; and
- Prohibiting employers from intentionally misgendering employees.
The Guidance was approved despite objections from the Acting Chair of the EEOC, Andrea Lucas. This past January, President Trump spoke out against the Guidance and issued an Executive Order prohibiting the consideration of[RB1] [MC2] gender identity. He also demanded the EEOC amend the Guidance to be in compliance with the Executive Order. However, the EEOC currently lacks a quorum, so it is unable to modify or rescind the Guidance.
In May 2025, a federal trial court in Texas ruled the EEOC’s changes in their harassment guidance exceeded the Agency’s statutory authority and thus vacated those sections nationwide.
Where are We Now?
The stricken sections of the Guidance sought to prohibit the following types of conduct:
- harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex;
- repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity; and
- the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.
The Texas court’s decision means such conduct should not be considered prohibited by Title VII. A big national issue is does a local federal court have the right to strike down such guidance in its jurisdiction alone or nation-wide. The Northern District of Texas court claims it has the authority to strike such language on a national basis, but that is a matter of major debate. In fact, we may need to wait until the Supreme Court rules on this issue for a binding decision. It is also possible this entire case will become moot once the EEOC regains its quorum if the members agree to remove the challenged sections of the Guidance. [MC3]
Implications for Employers
Despite portions of the Guidance being struck down, Employers still must be careful when gender identity issues arise. Supreme Court decisions have held discriminating against individuals due to their sexual orientation or transgender status is prohibited. Additionally, many state and local laws explicitly prohibit such conduct, even if the conduct is not federally prohibited.
Unfortunately, the issue of what constitutes sex discrimination is in flux. Employers should be on top of any modification or rescissions that may come from the EEOC, once they have a quorum which permits them to make changes to the Guidance. Simultaneously, state and local laws must be watched. It is also important for Employers to ensure that their workplace policies are consistent with federal, state and local discrimination laws. Until there is further clarification from the Supreme Court or the EEOC itself, it is better to be safe than sorry.
Brody and Associates regularly provides counsel on civil rights issues and employment laws in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
