/>iOn May 15, a Texas federal court vacated portions of the Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance on Harassment in the Workplace, concluding that the agency’s expanded interpretation of “sex” under Title VII exceeded its statutory authority (Texas, et al. v. EEOC, 2:24-CV-173).
This decision has immediate, nationwide implications for employers, particularly with respect to workplace policies addressing harassment based on gender identity and sexual orientation.
Background and Scope of the Ruling
The EEOC’s guidance, adopted in 2024 by a narrow 3-2 vote, faced internal opposition, notably from the Acting Chair Andrea Lucas, who objected to provisions treating denial of access to facilities consistent with an individual’s gender identity and intentional misuse of names or pronouns as harassment under Title VII. President Trump’s Executive Order titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” excluded gender identity from the definition of sex and directed federal agencies to align policies with “biological truth.” As a result, the EEOC was instructed to amend any conflicting guidance. However, due to a lack of quorum, the agency has been unable to formally rescind or revise the guidance. In response to the Executive Order, Lucas declared a change in the agency’s priorities, emphasizing the protection of women from sex-based discrimination by rolling back policies associated with gender identity. These changes involve deactivating the agency’s “pronoun app,” removing non-binary gender markers from discrimination charge forms, and purging EEOC resources of materials that promote gender ideology.
In its ruling, the Texas court determined that certain provisions — specifically all language defining “sex” in Title VII to include “sexual orientation” and “gender identify,” harassment based on sexual orientation and gender identity, and all language defining “sexual orientation” and “gender identity” as a protected class — exceeded the EEOC’s statutory authority and conflicted with existing law. As a result, the court vacated these sections on a nationwide basis.
Vacated Guidance
The vacated guidance of these provisions likely means the EEOC will not be filing litigation alleging discrimination on the basis of sex or gender identity. The EEOC has already withdrawn a number of cases alleging discrimination on the basis of gender identity and has marked these sections on its website to help identify which provisions are no longer operative. This includes guidance and examples related to harassment based on sexual orientation or gender identity, such as intentional misgendering and denial of access to sex-segregated facilities aligned with an individual’s gender identity.
Implications for Employers
Employers should still proceed with caution where these issues arise. The US Supreme Court has interpreted Title VII of the Civil Rights Act of 1964 to prohibit discrimination rooted in sex-based stereotypes, beginning with its decision in Price Waterhouse v. Hopkins in 1989. This interpretation was further expanded in 2020 with Bostock v. Clayton County when the Supreme Court held that adverse employment actions against individuals because of their sexual orientation or transgender status are forms of sex discrimination. However, given the Texas decision, future clarification is likely. Moreover, there are a number of state and local laws that expressly prohibit discrimination on the basis of sexual orientation and gender identity.
Employers should closely monitor further developments from the EEOC and the courts. In the interim, it is advisable to review workplace policies and training materials to ensure they are consistent with applicable federal and state law and to seek legal guidance on handling complaints related to gender identity and sexual orientation.
