Real World Impact: President Trump’s recent Executive Order targeting “Gender Ideology” will likely result in a change in the Equal Employment Opportunity Commission’s (EEOC’s) focus in harassment and discrimination investigations and its guidance documents; however, employers should ensure their policies and procedures continue to comply with court interpretations of federal antidiscrimination and harassment laws as well as those issued by state and local governments.
Background: On January 20, 2025, President Trump signed Executive Order 14168 titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” Among other things, the Executive Order requires that agencies, including the EEOC, rescind “all guidance documents . . .or such parts of such documents that are inconsistent” with the requirements of Executive Order 14168. The Order specifically identifies the EEOC’s April 29, 2024 “Enforcement Guidance on Harassment in the Workplace” as a document that the Administration expects to be rescinded in whole or in part. The Enforcement Guidance on Harassment in the Workplace, which we spoke in depth about in this Legal Alert, clarified conduct that could form the basis of a harassment claim, including denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity and intentional use of a name or pronoun inconsistent with the individual’s known gender identity. Newly appointed Acting Chair of the EEOC Andrea Lucas has been a vocal critic of the EEOC’s Enforcement Guidance on Harassment, specifically the portions focused on LGBTQ status.
Acting Chair Lucas has acknowledged that the EEOC is currently unable to rescind portions the Agency’s Harassment Guidance that are inconsistent with the Executive Order. The Commission acts by majority vote, and since President Trump terminated two sitting commissioners, the Agency has been left without a voting quorum. Despite being unable to rescind the Guidance, Lucas can still have a major impact in determining what type of lawsuits the Agency will file and the procedural steps the Agency may take. For instance, Lucas stated that, in accordance with President Trump’s Executive Order, 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.” To that end, she announced the removal of the Agency’s “pronoun app,” which allowed employees to display their pronouns next to their names on external and internal messaging systems. Lucas also ended the use of the “X” gender marker in the intake process for filing discrimination charges and will require changes to official forms to eliminate “Mx.” from the list of prefix options for discrimination claims.
What Can Employers Expect?
Lucas’s statements make clear that the EEOC’s current enforcement priorities align with the Administration’s priorities. However, the Administration’s interpretation of Title VII contradicts the Supreme Court’s decision in Bostock v. Clayton County. In Bostock, the Court found that “sex” as defined by Title VII does include “gender identity” and, therefore, Title VII’s prohibition on sex discrimination and sexual harassment extends to discrimination and harassment on the basis of sexual orientation and gender identity. Unless that decision is reversed, employers can expect to continue to see charges of discrimination based on LGBTQ status; however, it is unlikely that the Agency itself will continue to pursue these claims for the next four years. Equally important, however, is that many states have laws that explicitly prohibit discrimination on the basis of sexual orientation and gender identity. Furthermore, it is unclear whether deferral agencies will mirror the EEOC’s enforcement priorities or whether independent agencies will follow their own priorities.