A Texas federal district court has issued a ruling finding portions of the U.S. Equal Employment Opportunity Commission's (EEOC) enforcement guidance on harassment unlawful. More specifically, the Court held that the definition of "sex" in the guidance was too expansive insofar as it included sexual orientation or gender identity. The Court's ruling has vacated those portions of the guidance nationwide.
Enforcement Guidance on Harassment in the Workplace, which the EEOC issued in April 2024, addresses the definitions of harassment based on race, color, religion, sex, national origin, age, disability, or genetic information. The guidance also contains an analysis framework for determining whether an employer is liable for these types of harassment.
The portions of the guidance at issue included the EEOC's definition of "sex" and pregnancy, childbirth, and related medical conditions, along with sexual orientation or gender identity. The guidance gives examples of sex discrimination as inclusive of denial of access to a bathroom based on gender identity or purposeful and repeated use of a name or pronoun "inconsistent with [an] individual's known gender identity."
In January 2025, President Trump issued an executive order directing the EEOC to remove all guidance conflicting with his mandate that sex refers to "an individual's immutable biological classification as either male or female." The executive order also explicitly stated that "sex" does not include the concept of "gender identity," citing a "misapplication of the Supreme Court's decision in Bostock v. Clayton County (2020)."
According to the U.S. District Court for the Northern District of Texas, the EEOC exceeded its statutory authority by disregarding the plain text of Title VII and unlawfully expanding the scope of the definition of "sex." The Court concluded that the EEOC had no power to create newly protected categories of sexual orientation and gender identity. The Court further noted that the majority opinion in Bostock v. Clayton County rejected a broader definition of "sex" that did not include "homosexuality and transgender status." Although the Supreme Court also stated that homosexuality and transgender status necessarily encompass sex discrimination, the Texas district court pointed out that only Congress can add elements to a statutory definition.
However, despite the Court's decision, the EEOC cannot rescind or modify its guidance without a quorum and a majority vote. The EEOC currently has no quorum. Still, the EEOC labeled and shaded the portions of the guidance vacated by the Court to comply with its order.
Due to the Court's ruling, employers should handle specific situations involving harassment due to sexual orientation or gender identity on a case-by-case basis after consulting legal counsel. Employers also should watch out for additional guidance or updates from the EEOC once it regains a quorum.
In addition, employers should keep in mind that some states and local jurisdictions, such as the state of California, provide more expansive legal protections for sexual orientation or gender identity. Compliance with these local and state laws is mandatory, even if the Court has invalidated the relevant federal guidance.
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