EEOC Pulls Back on Gender Identity Discrimination Enforcement

Citing adherence to President Trump’s recently issued Executive Order targeting legal protections for gender identity, the Equal Employment Opportunity Commission announced that it was withdrawing lawsuits and guidance on gender identity discrimination. 

Why it matters: Changing EEOC and Trump administration legal interpretations (which may or may not be enforceable in court) and enforcement priorities may put employers in the crosshairs for their gender identity discrimination and harassment policies. 

Lawsuits first, guidance later:  The Commission filed motions to dismiss numerous pending gender identity discrimination cases as part of an overall withdrawal of enforcement on gender identity discrimination issues. Acting Chair Andrea Lucas separately announced that the Commission would eventually rescind EEOC guidance on gender identity discrimination once it had a three Commissioner quorum. 

What about the law? The EEOC’s withdrawal doesn’t quite fully square with federal anti-discrimination law under Title VII - the primary statute the EEOC is tasked with enforcing.

• A 2020 Supreme Court decision (8-1) in Bostock v. Clayton County specifically ruled that Title VII extends to discrimination on the basis of gender identity. 

• However, the decision declined to rule on specific legal protections based on gender identity, such as transgender bathroom access. 

• It appears that the EEOC is using both the recent Trump EO (itself the target of multiple lawsuits) and the vagueness of the Supreme Court’s decision in Bostock as legal cover for its decision to pull back on gender identity discrimination enforcement. 

The bottom line: Enforcing workplace discrimination and harassment policies against anti-gender identity behavior may become increasingly difficult under the Trump administration and its EEOC. 

More backtracking: The EEOC also scrubbed recently-issued guidance on AI bias issues from its website and reportedly will not defend its previous stance that the Pregnant Workers’ Fairness Act also covers abortion.