In a recent legal development, a Texas federal district court has vacated specific portions of the Equal Employment Opportunity Commission’s (EEOC) May 2024 harassment guidance that pertained to gender identity in the workplace. This ruling signifies a potential shift in how federal agencies may interpret protections under Title VII of the Civil Rights Act, especially concerning gender identity and sexual orientation.
Background on the 2024 EEOC Guidance
The EEOC’s 2024 guidance, issued in response to the Supreme Court’s decision in Bostock v. Clayton County (“Bostock”) which held that sex-based discrimination includes sexual orientation and gender identity, represented the agency’s first major update on workplace harassment in nearly 25 years. While many of the revisions were broadly accepted, certain provisions, particularly those related to gender identity, pronoun usage, and restroom access sparked controversy and prompted legal challenges.
Summary of the Court Ruling
U.S. District Judge Matthew Kacsmaryk ruled that Title VII remains based on a “biological understanding of sex.” According to the court, the EEOC exceeded its authority by requiring employers to accommodate gender identity-based requests, including:
- Use of preferred pronouns.
- Access to restrooms aligned with an employee’s gender identity.
- Dress code accommodations.
The ruling sets aside the following portions of the EEOC’s guidance:
- All language interpreting Title VII’s definition of sex to include sexual orientation and gender identity.
- Sections defining harassment based on sexual orientation and gender identity.
- Examples citing intentional misgendering as a form of harassment.
- Definitions treating sexual orientation and gender identity as protected classes.
It is unlikely that the EEOC will appeal the decision, as current agency leadership has signaled an intention to align with recent executive orders that reflect a return to biologically based interpretations of sex in federal policy. However, because the EEOC currently lacks a quorum, it is unable to rescind or revise the Enforcement Guidance on Harassment in the Workplace at this time. To assist the public, the EEOC has shaded and labeled the vacated portions of the guidance on its website.
Despite this court ruling, employment discrimination based on sexual orientation and gender identity remains unlawful under federal law, as established by the U.S. Supreme Court’s 2020 decision in Bostock. Under Bostock, adverse employment actions motivated by an individual’s sexual orientation or gender identity are still prohibited. In addition, many state and local laws continue to provide explicit protections related to sexual orientation, gender identity, and gender expression.
Ultimately, any legal change at the federal level would require the Supreme Court to overturn its decision in Bostock.
Next Steps for Employers
Employers must navigate compliance with federal rulings and guidance while simultaneously adhering to state and local laws, some of which may impose more stringent requirements than current federal interpretations.
To ensure continued compliance with this evolving regulatory landscape, employers should:
- Reassess and update anti-harassment and Equal Employment Opportunity (EEO) policies to ensure they align with both federal law (as per Bostock) and applicable state and local regulations.
- Educate managers and employees on harassment prevention, emphasizing inclusive workplace practices even where federal guidance has shifted.
- Stay informed on EEOC updates, court rulings, state and/or local legislative actions that could impact workplace discrimination and harassment policies.
- Seek guidance from legal counsel on how to navigate potentially conflicting federal and state laws regarding gender identity in employment decisions.
