EEOC guidance meant to protect LGBTQ+ workers vacated by federal court
A federal court has vacated part of guidance on how to address on-the-job harassment previously issued by the Equal Employment Opportunity Commission — namely, provisions meant to protect LGBTQ+ individuals in the workplace.
The action related to the Enforcement Guidance on Harassment in the Workplace follows President Trump’s issuance of executive orders aimed at doing away with employer diversity, equity and inclusion initiatives.
The court’s ruling applies nationwide, according to attorney James A. Paretti Jr., a shareholder in Littler Mendelson’s Washington, DC, office.
According to court records, the US District Court for the Northern District of Texas vacated portions of the guidance because the EEOC allegedly “exceeded its statutory authority by issuing” it and by “requiring bathroom, dress and pronoun accommodations inconsistent with the text, history and tradition of Title VII and recent Supreme Court precedent.”
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating based on someone’s gender identity as well as some other characteristics. In 2020, the Supreme Court ruled in Bostock v. Clayton County that firing or discriminating against someone for being transgender or gay violates Title VII.
The court said that the EEOC improperly misinterpreted Bostock “by redefining the core definition of ‘sex,’” Paretti said.
“While the invalidation of these portions does not technically mean that the EEOC cannot file litigation alleging discrimination on the basis of sex or gender identity, it seems highly unlikely that the agency will do so any time in the near future,” Paretti said. “Indeed, the EEOC has previously indicated that all such charges will be sent to headquarters for review, and the agency has withdrawn a number of cases alleging discrimination on the basis of gender identity.”
According to the EEOC, the agency cannot rescind or modify the guidance now because it lacks a quorum. To comply with the federal court’s order, the commission has labeled and shaded the vacated portions of the guidance on the agency’s website.
