Parts of EEOC Guidance Overturned

Two recent publications from the U.S. Equal Employment Opportunity Commission (EEOC) are facing legal challenges, with federal courts vacating portions of each.

On May 15, a federal district judge in Texas ruled that the EEOC exceeded its authority by including requirements related to bathrooms, dress codes, and pronoun usage as part of discrimination based on “sex” for purposes of liability under Title VII. The court found the guidance, which placed discrimination based on sexual orientation and gender identity or expression under the umbrella of sex-based discrimination, to be inconsistent with Supreme Court precedent and federal civil rights law. The ruling pertains to the EEOC’s April 29, 2024, Enforcement Guidance on Harassment in the Workplace, which addresses harassment based on protected characteristics and outlines standards for employer liability. The portions of the guidance have drawn criticism, including from EEOC acting Chair Andrea Lucas.

Similarly, on May 21, a federal district judge in Louisiana vacated part of the EEOC’s final rule implementing the Pregnant Workers Fairness Act (PWFA). The ruling struck down language that included elective abortion as a condition qualifying for reasonable accommodation under the law. Additional litigation related to the PWFA is ongoing.

Currently, the EEOC lacks a quorum, limiting its ability to issue new guidance or regulations. However, once a quorum is restored, the commission is expected to revisit both the harassment guidance and PWFA regulations.