EEOC Chair: Agency Must Rescind ‘Flawed’ Harassment Guidance

The U.S. Equal Employment Opportunity Commission’s (EEOC’s) Acting Chair Andrea Lucas has said the agency’s “flawed” guidance on harassment due to gender identity should be rescinded.

In a news release headlined “Removing Gender Ideology and Restoring the EEOC’s Role of Protecting Women in the Workplace,” the agency said it’s “returning to its mission of protecting women from sexual harassment and sex-based discrimination” and rolling back the “gender identity agenda.”

The agency noted that one of President Donald Trump’s first executive orders (EOs) was EO 14168, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” This EO “directed federal agencies to enforce laws governing sex-based rights, protections, opportunities, and accommodations to protect men and women as biologically distinct sexes, and to remove all statements, policies, regulations, forms, communications, or other internal and external messages promoting gender ideology,” the EEOC said.

Following EO 14168, Lucas has taken the following actions:

• Announced that one of her priorities—for compliance, investigations, and litigation—is to defend the “biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work.”
• Ended the use of the “X” gender marker during the EEOC intake process for filing a charge of discrimination.
• Directed the modification of the charge of discrimination and related forms to remove “Mx.” from the list of prefix options.
• Removed materials promoting what the EEOC calls gender ideology on the commission’s internal and external websites and documents, including webpages, statements, social media platforms, forms, trainings, and others. If a publicly accessible item cannot be immediately removed or revised, a banner has been added to explain why the item has not yet been brought into compliance.

Harassment Guidance Criticized

The EEOC explained that when issuing certain documents, its acts by majority vote. Based on Lucas’ existing authority and because the EEOC currently doesn’t have a quorum, she cannot unilaterally remove or modify certain “gender identity”-related documents subject to Trump’s directives in his executive order. These include the commission’s Enforcement Guidance on Harassment in the Workplace; the EEOC Strategic Plan 2022-2026; and the EEOC Strategic Enforcement Plan Fiscal Years 2024-2028.

Lucas voted against each of these documents. In particular, she has been vocal in her opposition to portions of the EEOC’s harassment guidance that took the enforcement position that harassing conduct under Title VII includes “denial of access to a bathroom or other sex-segregated facility consistent with [an] individual’s gender identity” and that harassing conduct includes “repeated and intentional use of a name or pronoun inconsistent with [an] individual’s known gender identity.”

Although Lucas currently cannot rescind portions of the EEOC’s harassment guidance that are inconsistent with EO 14168, she remains opposed to those portions of the guidance.

“Because of biological realities, each sex has its own, unique privacy interests, and women have additional safety interests, that warrant certain single-sex facilities at work and other spaces outside the home,” Lucas said. “It is neither harassment nor discrimination for a business to draw distinctions between the sexes in providing single-sex bathrooms or other similar facilities which implicate these significant privacy and safety interests. And the Supreme Court’s [2020] decision in Bostock v. Clayton County does not demand otherwise: the court explicitly stated that it did ‘not purport to address bathrooms, locker rooms, or anything else of the kind.’ ”

Bostock made clear that “sex” discrimination under Title VII of the Civil Rights Act of 1964 includes sexual orientation and gender identity, David Garland, an attorney with Epstein Becker Green in New York City and Newark, N.J., told SHRM after the decision. Title VII prohibits an employer from discriminating against workers based on protected characteristics with respect to terms and conditions of employment, including hiring, firing, laying off, training, and disciplining.

“An employer may not discriminate with respect to benefits provided to any group of similarly situated workers that includes members of a protected class,” Garland noted. “That would be particularly true with respect to health care coverage, parental leave, and similar emoluments.”

But as for the EEOC’s harassment guidance, Lucas said it was “fundamentally flawed. It ignored biological reality, effectively eliminated single-sex workplace facilities, and impinged on all employees’ rights to freedom of speech and belief. In unlawfully expanding past Bostock’s dictates, the EEOC exceeded its authority. The EEOC must rescind the guidance and protect the sex-based privacy and safety needs of women.”

The guidance acknowledged that “Bostock stated that it did not address ‘bathrooms, locker rooms, or anything else of the kind.’ ” And it maintained, “Nothing in the guidance suggests that Bostock addressed those issues.”

The guidance said, “Because the EEOC is statutorily required to investigate all private sector Title VII [of the Civil Rights Act] charges of discrimination presented to it in the administrative process, and also to decide administrative appeals by federal employees raising Title VII claims, the EEOC must sometimes take a position on whether an alleged type of conduct violates Title VII even in the absence of binding Supreme Court precedent.”

Feb. 5 SHRM Webcast: Gender & Inclusion: Navigating New DEI Executive Orders

A Dozen State Attorneys General Oppose EOs on DEI

Meanwhile, in a joint statement, New York Attorney General Letitia James and 11 other state attorneys general opposed Trump’s recent EOs on diversity, equity, and inclusion (DEI).

“These orders have nothing to do with [combating] discrimination,” they said. “The Trump administration has longstanding civil rights laws at its disposal to combat real discrimination, and we would be willing partners if it chose to pursue this path. Instead, the administration is targeting lawful policies and programs that are beneficial to all Americans. These policies and programs are not only consistent with state and federal anti-discrimination laws, they foster environments where everyone has an opportunity to succeed. That is the opposite of discrimination.”  

Joining James in issuing the statement were the attorneys general of California, Connecticut, Delaware, Illinois, Hawaii, Massachusetts, Maryland, Minnesota, New Jersey, Vermont, and Washington.