A federal court’s ruling last week striking down the Equal Employment Opportunity Commission’s guidelines on gender identity and sexual orientation harassment in the workplace got the attention of employers around the country, but the practical impact of this decision is more limited than what many might assume.
In the wake of new court decisions or changes announced by regulatory agencies, sometimes I need to put together a timeline to figure out where we stand. That certainly is the case when trying to unravel the significance of this most recent court ruling. So here goes …
2020 – In Bostock v. Clayton County, the U.S. Supreme Court ruled that an employer’s discharge of an employee based upon their sexual orientation or gender identity amounted to employment discrimination that violated Title VII. The Supreme Court took pains to point out that it was not addressing questions like shared bathrooms; it was only ruling upon discriminatory discharge.
2024 – The EEOC issued its Enforcement Guidance in Harassment in the Workplace, which addressed sexual orientation and gender identity harassment in addition to other types of harassment. Among other things, the 2024 Guidance banned harassment based on sexual orientation or gender identity, supported employees’ right to use pronouns or names consistent with their gender identity, and upheld individuals’ entitlement to use a workplace bathroom consistent with their gender identity.
Although not legally binding, this guidance clearly signaled to employers the EEOC’s intentions for conducting investigations and taking legal enforcement action.
2025 – The State of Texas filed a lawsuit seeking to set aside those portions of the 2024 Guidance that covered workplace gender identity issues. On May 15, 2025, a federal court in Texas vacated the gender identity portions of the 2024 Guidance. Since the ruling, which applies nationally to employers, the EEOC has pointed out on its website the portions of the 2024 Guidance that were struck down by the court.
What now for employers?
Remember: EEOC guidances – or in this case, the setting aside of a guidance – do not carry the force of law. They are pronouncements by the EEOC of how it interprets Title VII for purposes of its investigations and legal actions.
The U.S. Supreme Court’s Bostock decision remains the law. Since that 2020 decision, a number of courts around the country have ruled that gender identity harassment at work violated Title VII, and some states have in place laws expressly prohibiting gender identity and sexual orientation employment discrimination. While the EEOC may not be pursuing these issues, individual employees and their lawyers remain able to file gender identity harassment and discrimination lawsuits against employers.
Employers should continue to prohibit any form of harassment or discrimination aimed at an employee’s gender identity or sexual orientation, as well as carefully consider accommodating employees’ personal preferences for name or pronoun use. Right now, it’s uncertain how to handle requests by employees to use a bathroom that fits their gender identity. Like employers, we’re closely following how these new developments unfold so we are positioned to guide employers through changes to the legal landscape.
As always, employers are best served by cultivating and maintaining a workplace that is professional and respectful of its workforce.
Texas v. Equal Employment Opportunity Comm’n, 2:24-CV-173 (N.D. Tex. 5/15/25)
