05-27-2025
In 2021, the EEOC chair issued “technical assistance” on sexual orientation and gender identity discrimination. This technical assistance was a reaction to the U.S. Supreme Court’s decision in Bostock v. Clayton County. In that decision, the Court held that Title VII’s prohibition on sex discrimination included sexual orientation and gender identity. The EEOC later approved an update to its formal guidance to incorporate the technical assistance. EEOC Acting Chair Andrea Lucas voted against the update at that time and continues to oppose it. The Commission needs, but does not currently have, a full quorum of members to revise the guidance.
The State of Texas and the Heritage Foundation sued to stop the EEOC from enforcing its guidance. A federal district court in Northern Texas agreed with the plaintiffs. The court held that the EEOC’s position “expanded the scope of sex beyond the biological binary” and was contrary to Title VII because it “defin[ed] discriminatory harassment to include failure to accommodate a transgender employee’s bathroom, pronoun, and dress preferences.” The court also held that the EEOC misinterpreted Bostock by “redefining the core definition of ‘sex.’” Per the Texas court’s opinion, Bostock’s holding was limited. Title VII only proscribed firing someone because they were transgender or homosexual.
The EEOC has updated its website to reflect the Texas court’s ruling. Employment lawyers acknowledge the complicated landscape for employers as they manage varying federal, state, and local discrimination laws. Some states and localities have more expansive legal definitions of sex-based discrimination that prohibit discrimination based on sexual orientation and gender identity.