A Less Than Lush Workplace Environment Alleged For LGBTQ+ Employees
Last month, in the wake of the Administration’s Executive Order “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” the Equal Employment Opportunity Commission (“EEOC”) dismissed several lawsuits it brought against employers on behalf of transgender employees and employees alleging discrimination or harassment because of their sexual orientation.
Why The Change of Heart By The EEOC?
The Acting Chair of the EEOC, Andrea Lucas, has made no secret of her perspective as to agency protection of LGBTQ+ employees.
On January 28, 2025, she issued a statement outlining her views on gender identity in the workplace, and explained she would prioritize compliance, investigations, and litigation to “defend the biological and binary reality of sex and related rights, including women’s rights to single sex spaces at work”; removing EEOC employees’ ability to indicate pronouns in their communications; eliminating the use of the non-binary “X” gender marker for charges; and removing materials “promoting gender ideology” on the Commission’s internal and external websites.
Similarly, the Executive Order concerning “gender ideology,” defines “sex” as each “individual’s immutable biological classification as either male or female,” and calls for eradicating “gender ideology,” which “includes the idea that there is a vast spectrum of genders that are disconnected from one’s sex.”
The combination of Lucas’s views and the Executive Order culminated in the EEOC’s withdrawal of several lawsuits it initiated on behalf of LGBTQ+ individuals, according to the Associated Press.
Let’s discuss one of these cases today.
EEOC v. Lush Cosmetics, LLC
The first amended complaint against Lush alleges a hostile work environment based on sex, sexual orientation, and gender identity, created by the store manager at Lush’s Santa Clara location. The complaint accuses the manager of:
• Regularly yelling, throwing things, slamming doors, and openly berating employees;
• Making crude and salacious comments, such as referring to female employees and customers as a “c**t” and “b**tch," and making inappropriate comments about employees’ bodies, including remarks like “your breasts [are] looking big” and “you’re putting them out there”;
• Engaging in unwanted sexual comments and advances, including probing into employees’ sexual relationships (including a request for a threesome) and making sexually explicit remarks; and
• Making derogatory comments about employees’ gender identities, such as telling one employee she was “not gay enough” because she had a male partner, and “outing” another employee’s gender identity to coworkers.
Its second count, for constructive discharge, details a workplace so egregious that employees were forced to quit.
Moreover, it claims that despite filing complaints through Lush’s internal systems, the company failed to take adequate corrective action, resulting in employees feeling compelled to resign to escape the harassment.
The Law Regarding Sex Discrimination
Discrimination based on a person’s gender identity or expression or sexual orientation is discrimination based on sex.
If the allegations are true, the manager’s conduct is sexual harassment. Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of sex, including discrimination because of sexual orientation, gender identity, or gender stereotypes, proscribes sexual harassment by coworkers and third parties in the workplace.
I am not making this up. The Supreme Court of the United States said so.
Image by imprimable from Pixabay
In Bostock v. Clayton County, SCOTUS unequivocally determined that Title VII prohibits discrimination based on sex (which it determined sexual orientation and transgender status was) even if that was only part of the reason for an adverse action. It ruled:
The statute’s [Title VII] message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.
When an Executive Order Conflicts With Law, What Should Employers Do?
Employers, Title VII is law, and the Bostock ruling is SCOTUS’s interpretation of that law regardless of the EEOC’s decision not to pursue claims on behalf of the LGBTQ+ community. With that said,
Implement Robust Anti-Harassment Policies. Ensure that your company has clear, comprehensive policies that define and prohibit harassment and discrimination. These policies should cover all forms of harassment, including those based on sex, sexual orientation, and gender identity. Use examples, including those based on gender identity and sexual orientation such as intentional misgendering; “outing” a person (i.e., disclosing a person’s sexual orientation or gender identity without permission); or harassing conduct because someone does not present in a manner that would stereotypically be associated with that person’s sex. Regularly review and update these policies to reflect current laws and best practices.
Follow your legally compliant policies and DOCUMENT. Have clear standards for accountability and actions that merit discipline.
Conduct regular training sessions for employees, including management, on recognizing, preventing, and reporting harassment and discrimination. Training should emphasize the importance of a respectful workplace and the consequences of violating company policies.
Establish Effective Reporting Mechanisms. Employers should create multiple, accessible channels for employees to report harassment and discrimination. Ensure that complaints are taken seriously and investigated promptly and thoroughly. Protect employees from retaliation and communicate the steps taken to address their concerns.
Leadership matters. Senior leaders should promote harassment prevention to show commitment and lead by example.
Employers, foster a safe, respectful, and inclusive workplace. Remember, that while executive orders instruct federal agencies, private employers should maintain LGBTQ+ protections and comply with existing laws.