Inside the Exclusive: The EEOC’s New Enforcement Priorities, Part 4—Gender Identity

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Jim Paul: All right. We’re back again for another episode of EEOC initiatives and hot topics. And this was a topic that Scott Kelly, Tae Phillips, and I had spoken about at the Corporate Counsel Exclusive here at the Broadmoor Resort in Colorado Springs. And Scott, do you want to talk a little bit about the gender identity space, and what’s been happening lately?

Scott Kelly: Absolutely. And there’s been quite a lot. It’s really hard to miss. Everyone’s familiar with the executive order that Donald Trump signed on his very first day in office this term, Executive Order 14168. And if you are not tracking those numbers, I’ll tell you that that is, what I prefer to call, the gender identity. It is referred to by the administration as the Gender Ideology Executive Order. And that basically, in the United States, according to the President and his administration, that the U.S. is only going to recognize two sexes, male and female. It’s gone to great efforts in a lot of different places, just even outside the employment space, to try to implement this policy. An example would be in passports. There’s a policy from the State Department that was just enjoined by a Federal District court in Maryland about two weeks ago that’s already on appeal to the Fourth Circuit, finding that that executive order was unconstitutional and discriminatory.
And we’ve seen a lot of challenges, whether it’s the transgender military ban or in other areas. And there are several legal challenges to this particular executive order that are percolating through our legal system. That executive order really spurred the EEOC to take swift action. They immediately took down, off of the EEOC’s website plenty of resources, informational pages on the Supreme Court decision in the Bostock v. Clayton County case, which the Justices made clear in that decision that Title VII of the Civil Rights Act makes it unlawful for there to be discrimination against job applicants or employees based on their sexual orientation and gender identity. They also took down or retracted pages from a 2021 technical assistant document discussing that Bostock decision and the EEOC’s long held position that Title VII extends to LGBTQ workers. Plus, a fact sheet explaining a 2015 federal sector decision in which the commission held that denying an employee access to a bathroom corresponding to their gender identity discriminated based on their sex.
There is a review going on of the EEOC’s Know Your Rights poster that was last updated in 2022 to incorporate these changes. And I think it’s important to get an idea of where Lucas stands on this issue by looking at a comment that she made. And she said, “The same agency that fought to ensure women had the right to have their own restrooms, locker rooms, sleeping quarters, and other sex specific workplace facilities and established that it would be sex discrimination not to provide such women only facilities, betrayed those women by attacking their sex-based rights in the workplace. And that must end.” So, that pretty much tells you where the EEOC is going to stand on those issues. We immediately saw the agency take action in some of its pending litigation and move to withdraw from cases where there were individuals that it was representing to advance transgender rights in the workplace.
We have seen that judges were slowing those dismissals or those motions to withdraw to ensure that those parties were indeed represented by other counsel. So, we’ve seen some plaintiff lawyers from different plaintiff firms or advocacy groups jump in and to continue those cases. Some of those have settled since then. And then just recently, we’ve seen a lawsuit filed by someone that was within EEOC saying that they suffered discrimination while working there because of their transgender status, and also that the EEOC itself was not working through its legislatively- and congressionally-approved mandates to enforce equal employment laws under Title VII. So, it’s interesting. We will watch all of that for you, and let you know what the impact of that litigation might have on your day-to-day.
Something that we expect, in the next few weeks, we’re all pretty confident that we’re going to see a quorum reestablished at the Commission with the nominated commissioner is Brittany Panuccio. She’s currently a U.S. attorney from Florida. And it’s expected by the end of September or first of October, she will be in place at the Commission, and we all are trying to decide how quick or swift we’re going to see action from the Commission.
We likely will see some changes to the guidance, the harassment guidance, and perhaps the Pregnancy Worker Fairness Act guidance or rule. We see that that is not going to be a surprise to anyone because Andrea Lucas and others in the administration have talked about how that guidance doesn’t conform with what they think the law might be. But we really focus in on what the law is here, and we want you to lean into the law. And so there have been some decisions. The Bostock decision, which I talked about earlier, and then I think the Muldrow decision is an important one to consider.
That’s a Supreme Court decision, as you know, that made sure everyone understood, under Title VII, that you did not have to suffer a final adverse employment action, that Title VII also covered terms and conditions of employment that had some type of harm associated with them. If you were denied perhaps access to even a one-on-one meeting with your supervisor or you’re not getting the same benefits as others might be getting. So clearly, if we get into what the majority called the Parade of Horribles in the Bostock decision, the pronoun usage, bathroom, single sex spaces, that we’re certainly going to get into some Muldrow-related analysis. And we’re seeing that play out in all the district courts across the U.S. Unfortunately, if you’re a nationwide employer, you’re going to have to go almost like to a state and local type analysis because different courts are looking and finding different things.
We do have a Texas court and a decision, Texas v. EEOC, that was dealing with somewhat of a separate issue, but decided to go ahead and vacate portions of that harassment guidance that we were speaking of earlier. Lots of moving parts in this area. And unfortunately, again, for nationwide employers, we do not have an easy button or a simple answer for you. This is going to be something that you’re going to need to be looking in, not only at the federal controlling law here as you lean into the law, but also the state law and even some local analogs. There are plenty of state ordinances that are going to give gender identity protections. And they might surprise you where they’re located. For instance, in the Birmingham, Alabama, from a city standpoint, there is an ordinance that gives protections to those that identify from a gender identity and sexual orientation standpoint.
And that can be a little bit of a surprise to somebody knowing how deeply red my home state happens to be. So, what we encourage you to do is to take a look as you’re getting these questions in the workplace of how to deal with them. Really, “lean into the law” there, deal with EEO issues. Especially these bathroom issues, we’re getting a lot of calls about them in the recent weeks and months. There seems to be a little bit of an emboldened nature in the workforce by some people. I had one where we’re dealing with almost a workplace bullying or a workplace violence issue a few weeks ago where we had some women standing in front of a bathroom, not letting a transgender woman come in. It almost got to, like I said, a violent situation. So, you have to deal with all of the issues I’ve talked about here, but also just the regular EEO workplace violence and bullying code of conduct stuff.
So, it is more good news from us, and that is sarcasm if you didn’t pick up on it. But definitely job security for everyone as all of these issues are going to continue to develop, especially with the EEOC having a quorum. And we’re going to try to keep you all posted as best we can.

Jim Paul: Hey, thanks so much, Scott. And just to chime in on the overlay and the overlap between those issues with gender identity and religious objections. We have this underneath the surface, there are religious objections to using preferred pronouns of a coworker. Or preventing bathroom usage by transgender employees. Objecting to respect training in the workplace or anti-harassment training. These all are overlapping and interrelated concepts that are really getting more energy and more voices in the workplace that all of us have to navigate and control and respond to. I think with that, we’re going to sign off from the Broadmoor Resort in Colorado Springs at the Ogletree Deakins Corporate Counsel Exclusive 2025.

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