EEOC Guidance Partially Vacated: What’s an Employer to Do?

Background

On May 15, the U.S. District Court for the Northern District of Texas vacated portions of the EEOC’s 2024 Enforcement Guidance on Harassment in the Workplace.^[1] The ruling limits the EEOC’s ability to use the Supreme Court’s expanded interpretation of “sex” under Title VII in Bostock v. Clayton County^[2] when evaluating an employer’s alleged harassment based on sexual orientation and/or gender identity.

Although the Guidance is not the law, it serves as a reference point for the EEOC when investigating charges and provides examples of scenarios the EEOC would consider unlawful discrimination, harassment or retaliation. The Guidance, promulgated under the Biden administration, provides that “sex-based harassment includes harassment based on sexual orientation or gender identity, including how that identity is expressed,” and includes several examples, such as using slurs and stereotypes related to same-sex marriage or relationships, and instructing an employee to dress in a way that reflects biological sex and cultural gender norms or stereotypes, rather than gender identity.^[3] The Guidance also provided several examples of a hostile work environment due to sex-based discrimination, including repeatedly misgendering or deadnaming^[4] a transgender employee.

A federal judge in Texas determined that Bostock extended only to discrimination that results in an adverse employment action, such as the terminations at issue in Bostock, and not to harassment or creation of a hostile work environment. Further, the Court concluded that in the absence of Congressional action, the definition of sex under Title VII is limited to “the biological binary: male and female.”

The EEOC is unlikely to appeal the decision, as EEOC acting chair Andrea Lucas has indicated the EEOC will not prioritize claims based on sexual orientation or gender identity, considering sex to be “binary . . . and immutable.”^[5]

This means that the EEOC is unlikely to consider sexual orientation or gender identity when investigating sexual harassment. Additionally, the EEOC will not require employers to have policies that allow employees to use bathrooms and sex-separated facilities in accordance with their gender identity, that allow employees to dress in accordance with their gender identity, or that require use of names or pronouns that reflect an employee’s preferences (if such preferences are not aligned with the employee’s biological sex at birth).

The portions of the Guidance that do not address sexual orientation or gender identity remain enforceable, because the EEOC presently lacks a quorum and therefore cannot rescind guidance documents, issue new policies or vote on rulemaking. However, if the Senate confirms Brittany Panuccio, President Trump’s recent appointee to fill a commissioner vacancy, her confirmation will result in a quorum, and the EEOC will likely rescind the Guidance as it was directed to do by Executive Order 14168.

Practical Tips for Private Employers

• The Texas ruling only limits the EEOC’s enforcement; it does not require employers to make any changes. Title VII, enforced by the EEOC, sets the federal bar for the lower limit of protections employers must provide.
• To the extent employers wish to make changes to policy protections based on the Court’s vacating of portions of the EEOC’s guidance, employers should evaluate potential impacts on employee relations, business considerations and governmental scrutiny, based on their particular circumstances. For example, some employers may decide to maintain higher levels of protection than called for by the EEOC in the interest of employee or customer relations. Others may choose to revise their policies in light of the same factors.
• Employers in certain jurisdictions should also keep in mind that state and local laws may require greater protections for employees than federal law. Currently, 32 states, the District of Columbia and three U.S. territories have laws that include sexual orientation and/or gender identity as protected characteristics in employment.
• Although employees bringing harassment claims based on sexual orientation or gender identity may not be successful at the EEOC, they can still file a charge, request a right-to-sue notice letter and commence a private suit against an employer alleging violation of Title VII. Although the Texas ruling may vacate some portions of the EEOC’s Guidance nationwide, its definition of sex is not binding on other courts, so employees may be successful when bringing these types of harassment claims in other jurisdictions.
• Also implicating Title VII, employees may request religious accommodations that conflict with a coworker’s chosen name, pronouns, or bathroom and facility choices. While an accommodation need not permit one coworker to discriminate against another, employers should be careful to address and not dismiss these requests and should consult legal counsel to navigate such complex situations.
• Although denying an employee’s request to use names, pronouns or facilities that do not reflect their biological sex, or allowing comments about an employee’s same-sex relationship may not constitute harassment under the Texas ruling, employers should be careful to avoid actions that amount to discrimination under Bostock and Muldrow v. City of St. Louis.^[6] Under Muldrow, if employer action leads to an employee suffering harm — even if not termination — with respect to a term or condition of employment, such as decreased networking opportunities, denied or forced transfers, demotions or denied promotions, the employee may be able to establish a discrimination claim based on an adverse employment action.

Robinson Bradshaw’s Employment & Labor Practice Group will be closely monitoring and reporting on the latest developments, including any announcements from the EEOC. For assistance in evaluating changes to your workplace, please contact a member of our team.

This article was prepared with the assistance of Kaitlyn Snyder, a rising 3L student at Wake Forest University School of Law.

[1] Texas v. EEOC, No. 2:24-CV-173-Z, 2025 WL 1414332 (N.D. Tex. May 15, 2025).

[2] Bostock v. Clayton County, 590 U.S. 644 (2020) (concluding that discrimination on the basis of a person’s sexual orientation or gender identity is discrimination on the basis of sex).

[3] U.S. Equal Emp. Opportunity Comm’n, Enforcement Guidance on Harassment in the Workplace (2024), https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace.

[4] “Deadnaming” as used here means referring to a person by a name they have chosen to stop using, generally because the former name aligns with their biological sex at birth while the chosen name aligns with their gender identity.

[5] U.S. Equal Emp. Opportunity Comm’n, Removing Gender Ideology and Restoring the EEOC’s Role of Protecting Women in the Workplace (2025), https://www.eeoc.gov/newsroom/removing-gender-ideology-and-restoring-eeocs-role-protecting-women-workplace#:~:text=%E2%80%9CBiology%20is%20not%20bigotry.,these%20realities%2C%20even%20repeatedly.%E2%80%9D.