May 15, 2025
Court Vacates Portions of EEOC’s 2024 Workplace Harassment Guidance – Agency Cannot “Fill in the Blanks for the Supreme Court”
On April 29, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) published “Workplace Guidance on Harassment Prevention.” It informed employers, in part, that unlawful harassment based on sex under Title VII of the Civil Rights Act of 1964 included harassment based on a person’s sexual orientation or gender identity. In that Guidance, the EEOC acknowledged that portions of its Guidance were not based on language within Title VII nor on any Supreme Court decision writing, “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.”
On May 15, 2025, the U.S. District Court for the Northern District of Texas ruled the EEOC exceeded its authority by (1) “expanding the scope of sex beyond the biological binary…male and female” and (2) “defining discriminatory harassment to include failure to accommodate a transgender employee’s bathroom, pronoun, and dress preferences.”
What about the SCOTUS decision in Bostock in 2020? You may remember in that case the Court ruled, “An employer who fires an individual merely for being gay or transgender violates Title VII.” In doing so, the Court expressly stated it would not redefine sex under Title VII to include gender identify or sexual orientation. Instead, it concluded that “an employer who fires an employee for actions or attributes it would tolerate in another individual of another sex discriminates against that person because of sex in violation of Title VII.” As for restroom access or accommodation, the Court stated that it did not “purport to address bathrooms, locker rooms, or anything else of the kind.” As a result, this Court held, “the EEOC cannot ‘fill in the blanks’ for the Supreme Court.”
What next? Considering the EEOC’s announcement earlier this year on its shift in “Protecting Women in the Workplace” it seems unlikely the agency will appeal this decision.
On May 20, 2025, the Agency updated its website. Since it does not have a quorum at this time, it cannot rescind or modify the Enforcement Guidance It has, however, labeled and shaded the vacated portions of the guidance.
Implications? Do you edit your EEO, Harassment, or related policies that prohibit discrimination or harassment based on sexual orientation or gender identity? Talk to your company’s legal counsel. Probably not. Many states and local jurisdictions prohibit such conduct so your policy may comply with those laws. Additionally, remember that you may provide benefits and protections to your employees that are greater than what the law requires. You just need to ensure that in protecting one employee you are not inadvertently impinging upon the rights of another.
