The EEOC’s Gender Agenda Positions the Agency at the Receiving End of A Federal Lawsuit

The Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for investigating workplace discrimination and harassment.

Like when a ref changes the rules mid-game, what happens when the agency changes its approach—particularly for transgender employees?

That’s the central issue in a new lawsuit challenging the EEOC’s recent shift in how it enforces protections for transgender workers, following a presidential executive order that emphasizes “biological distinctions” between men and women.

The Executive Order: A Shift to “Biological Sex”

Earlier this year, President Trump signed an executive order, Defending Women From Gender Ideology and Restoring Biological Truth to the Federal Government, directing federal agencies to enforce anti-discrimination laws based strictly on “biological distinctions between men and women.”

In effect, this means that if an employee’s gender identity does not align with the sex listed on their birth certificate, federal protections may not apply to the employee in the same way they did prior to January 2025.

The EEOC responded by rolling back certain protections for transgender employees.

The Complaint: “You Had One Job, EEOC”

The plaintiff’s complaint reads like a greatest hits album of “How Not to Enforce Civil Rights.” Here are a few of the ways the lawsuit alleges the EEOC is now violating the law:

1.     Ignoring Bostock: Remember that 2020 Supreme Court decision that said firing someone for being transgender (or gay) is sex discrimination under Title VII?

Yes, I’m talking about Bostock v. Clayton County, 590 U.S. 644 (2020) decided by the United State Supreme Court, which held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination on the basis of sexual orientation or gender identity.

Anyway, this complaint alleges that the EEOC is now pretending Bostock never happened and refusing to investigate claims of discrimination based on gender identity.

2.     Violating Title VII of the Civil Rights Act: Title VII prohibits discrimination “because of sex.” It is the main anti-discrimination law in the U.S.

The complaint argues that the EEOC’s new policy—refusing to act on complaints from transgender employees—directly violates this federal law. In other words, the agency tasked with enforcing anti-discrimination laws is, well, not enforcing them.

3.     Turning a Blind Eye to Harassment: The complaint gives the example of a transgender employee who endured years of slurs, threats, and even physical attacks at work. Under the old rules, the EEOC would have investigated, maybe even sued the employer. Now? According to the complaint, the EEOC has shrugged its virtual shoulders and said, “Not our problem,” if the harassment is based on gender identity.

4.     Targeting Transgender People: The lawsuit doesn’t mince words, accusing the administration of a “broader effort to strip transgender individuals of protections in government services and daily life.” The suit paints the EEOC’s position as part of a coordinated campaign to make life harder for transgender Americans, not just at work but everywhere.

Implications for Employers To Consider

The EEOC’s policy shift creates challenges and uncertainties for employers…but does it?

While the EEOC’s new approach creates confusion about how federal anti-discrimination laws will be enforced, the U.S. Supreme Court’s decision in Bostock remains the law of the land.

While employers may fear finding themselves caught between conflicting interpretations of Bostock, treating every employee with respect and dignity will certainly mitigate risk.

Next, even if the EEOC declines to investigate certain complaints, employees can still bring private lawsuits under Title VII and state and local anti-discrimination laws, many of which explicitly protect gender identity regardless of federal policy.

Finally, consider workplace morale and culture. Changes in federal enforcement may affect how transgender employees perceive their workplace.

Photo by Bruno Aguirre on Unsplash

OK Then, How Might Employers Handle This Policy Shift?

I have a few suggestions.

1.     Federal Inaction Does Not Eliminate Liability: The EEOC’s current policy does not override the Supreme Court’s decision or state and local laws. Discrimination based on gender identity remains a legal risk—and, it’s illegal under Bostock.

2.     Maintain Inclusive Policies: Employers should review and, if necessary, maintain or strengthen their anti-discrimination and anti-harassment policies to ensure they are inclusive and compliant with all applicable laws.

3.     Train Managers and Staff: Supervisors and employees should be trained to understand that discrimination and harassment based on gender identity are not acceptable, regardless of changes in federal enforcement.

4. Monitor Legal Developments: Ongoing legal challenges may result in further changes to federal policy. Employers should stay informed and be prepared to adjust their practices as the legal landscape evolves.

The EEOC’s role is to enforce anti-discrimination laws as interpreted by the courts—not rewrite it.

As legal challenges to the agency’s new policy proceed, employers should remain vigilant, ensure compliance with all applicable laws, and foster a workplace environment that is respectful and inclusive for all employees.