Federal Court Rules EEOC Harassment Guidance on Sex Unlawful

A federal court in Texas has ruled that parts of the U.S. Equal Employment Opportunity Commission’s (EEOC’s) enforcement guidance on harassment are unlawful. At the heart of the issue is the law’s definition of “sex,” which the court held as too expansive, and that the U.S. Supreme Court did not expand the definition of “sex” to include sexual orientation or gender identity. As of May 15, portions of the EEOC’s guidance have been vacated nationwide. 

On April 29, 2024, the EEOC published its Enforcement Guidance on Harassment in the Workplace to address how harassment based on race, color, religion, sex, national origin, age, disability, or genetic information is defined and provide an analysis for determining whether employer liability is established. Within the guidance, the EEOC defined “sex” as pregnancy, childbirth, and related medical conditions, as well as sexual orientation and gender identity. The agency took the position that under Title VII, a plaintiff could allege that harassment on the basis of sex can include “denial of access to a bathroom or other sex-segregated facility consistent with [an] individual’s gender identity,, as well as “repeated and intentional use of a name or pronoun inconsistent with [an] individual’s known gender identity.”

Notably, acting EEOC Chair Andrea Lucas opposed the agency’s majority decision. 

Upon taking office in January, Trump signed Executive Order 14168, which directed the EEOC to remove the guidance that conflicted with the administration’s mandate that sex “shall refer to an individual’s immutable biological classification as either male or female” and “does not include the concept of ‘gender identity.’” The executive order specifically directed the attorney general to “issue guidance to agencies to correct the misapplication of the Supreme Court’s decision in Bostock v. Clayton County (2020).”

Court Rejects EEOC Definition 

In its ruling, the U.S. District Court for the Northern District of Texas held that the agency “exceeded its statutory authority.” Specifically, it asserted that the guidance “contravenes Title VII’s plain text by expanding the scope of ‘sex’ beyond the biological binary” of male and female. According to the court, neither the law nor Supreme Court precedent define “sex” as broadly as the guidance, and the EEOC does not have the power to include the new protected categories of sexual orientation and gender identity. 

The court further cited Bostock v. Clayton County (2020), in which the majority rejected a broader definition of “sex,” ruling that the concept only refers to male and female and that “homosexuality and transgender status are distinct concepts from sex.” It is worth noting that with regard to this case, the Supreme Court argued that “homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”

The Texas district court, nevertheless, took the position that the EEOC had entered “the forbidden realm of substance” by adding elements to the definition. Only Congress has the power to do so, the court said. 

However, the EEOC is unable to retract or modify any portion of the guidance without a quorum and a majority vote of the commission. At present, the EEOC does not have a quorum. Following the federal court decision, the EEOC has labeled and shaded the vacated portions of the guidance to ensure compliance. 

Employer Guidance

In light of the court’s ruling, employers should work with legal counsel to handle specific situations related to gender identity or sexual orientation. In the meantime, they should monitor updates from the EEOC because the agency may issue new guidance or updates once it regains a quorum. 

Some states and local jurisdictions have laws that provide broader protections for sexual orientation and gender identity than federal law. For example, states such as California have explicit protections for LGBTQ+ individuals in the workplace. Employers must comply with these laws, even if federal guidance has been vacated. In general, it is good practice to ensure decisions are made according to objective, job-specific criteria.