HR Legalist

The EEOC Upends Its Agenda on Gender – What’s Next for Employers and Employees?

On January 20^th, President Trump issued his executive order titled “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” This executive order directs federal agencies to enforce laws in a manner promoting the administration’s view that the “sexes are not changeable and are grounded in fundamental and incontrovertible reality.” Following the issuance of this executive order, the Office of Personnel Management (“OPM”) issued “Initial Guidance Regarding President Trump’s Executive Order Defending Women” directing all federal employees to comply and take actions to effectuate the executive order (“OPM Guidance”). Citing both the executive order and OPM Guidance, the U.S. Equal Employment Opportunity Commission (“EEOC”) recently filed motions to dismiss seven (7) lawsuits[1] for workplace discrimination filed on behalf of transgender and non-binary employees.

Ordinarily, when the EEOC sues on behalf of employees, those individuals can (but are not required to) intervene in the case in order to safeguard their own interests. The agency’s retreat from these lawsuits means that the employees’ claims will be dismissed unless the employees themselves choose to enter the litigation.

In recent days, two nonprofit organizations announced that they would be taking on some of the cases. The American Civil Liberties Union (“ACLU”) branch in Michigan and the Gender Equality Law Center (“GELC”), a Brooklyn, New York-based organization that offers free legal services for women and LGBTQ+ employees, recently filed motions to intervene to represent employees in some of the pending lawsuits. We expect that similar requests to intervene will be filed in the other matters, either through similar advocacy groups or private counsel.

On March 5, 2025, the Northern District of Illinois refused to immediately grant the EEOC’s February 14^th motion to dismiss the Title VII complaint it had filed in the matter EEOC v. Reggio’s Pizza Inc., which accused a Chicago pizza chain of unlawfully firing a Black transgender employee after she complained of harassment. In a telephone hearing, the judge expressed concern over the EEOC’s request for dismissal with prejudice[2] and determined that she would not consider the motion until a motion to intervene was filed. The judge also denied the EEOC’s request to dismiss its case immediately when the motion to intervene was filed on the docket. A motion to intervene must be filed by April 4^th, and any response thereto by April 18^th. The parties are set for an in-person hearing on April 29^th.

It is unclear whether the EEOC’s withdrawal from these cases will impact the plaintiffs’ chances of success, or the outcome of other employment claims filed by transgender, gender non-conforming, or other LGBTQ+ workers. In January, the EEOC’s new acting chair, Andrea Lucas, removed many online resources regarding LGBTQ+ worker protections and issued a statement declaring the EEOC’s intention to roll back “the Biden administration’s gender identity agenda.” However, EEOC guidance is not binding on the courts.  The law has not changed since 2020 when the Supreme Court declared in Bostock v. Clayton County (a 6-3 decision authored by Justice Gorsuch and joined by Chief Justice Roberts) that the plain text of Title VII of the Civil Rights Act of 1964 bars discrimination based on sexual orientation or gender identity. In the almost 5 years since it was decided, Bostock has been cited by many lower courts in support of the rights of LGBTQ+ workers (including transgender employees) to be free from discrimination, harassment, and retaliation. Moreover, the EEOC’s standing guidance on Bostock, which remains on the EEOC’s website, clarifies that outing an employee, making fun of an employee’s gender expression, repeatedly misgendering an employee, or denying an employee access to a facility that corresponds with their gender identity could contravene federal law. While the EEOC has recently paused its processing of transgender bias charges and removed non-binary gender markers from intake forms, this pivot seemingly contradicts its own guidance.  

At the end of the day, the text of federal laws as interpreted by the Supreme Court trumps executive orders, and the President cannot alter state and local anti-discrimination laws that include express protections for LGBTQ+ workers.  At least 24 states explicitly ban gender identity bias in the workplace—meaning that workers in these states can make their case using the same standards of proof that apply to other protected categories, such as race, religion, or disability.  

For the employees who have lost the support of the EEOC, their chances of success may hinge upon how quickly they can obtain new counsel who can become familiar with the facts of the cases and build a case through the discovery process.  Going forward, employees can still file charges with the EEOC and request a right-to-sue notice, which will then allow them to proceed to federal court on their own behalf regardless of the EEOC’s position.  Some state laws apply to a broader range of employers and provide stronger remedies than Title VII.  In some of these states, employees can proceed directly to court without filing a charge with the EEOC or a state administrative agency.  The EEOC redirecting the federal government’s focus away from LGBTQ+ workplace discrimination cases will likely encourage states to enhance their enforcement efforts and take on a more active role in investigating complaints.

The bottom line for employers is this: LGBTQ+ workers (including transgender workers) still have legal rights that can be enforced in court, and those rights are backed up by fee-shifting statutes that allow attorneys to recover their costs and fees if they prevail.  Bostock is still the law of the land, and employers (especially those in employee-friendly states such as California, New York, and New Jersey) need to be mindful of state and local laws providing additional protections.

Watch this space, as it remains to be seen how the EEOC will thread the needle between its existing guidance and the view of the Trump administration.  In the meantime, employers will inevitably be faced with day-to-day HR issues pertaining to gender—such as conflicts between the religious beliefs of some employees and the rights of other employees who don’t conform to traditional gender norms.  If you are an employer presented with these situations, contact one of Obermayer’s experienced labor and employment attorneys for a consultation. 

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.

[1] The cases are: (1) U.S. Equal Employment Opportunity Commission v. Sis-Bro Inc., case number 3:24-cv-00968, in the U.S. District Court for the Southern District of Illinois; (2) U.S. Equal Employment Opportunity Commission v. Harmony Hospitality LLC, case number 1:24-cv-00357, in the U.S. District Court for the Middle District of Alabama; (3) U.S. Equal Employment Opportunity Commission v. Reggio’s Pizza Inc., case number 1:24-cv-08910, in the U.S. District Court for the Northern District of Illinois; (4) U.S. Equal Employment Opportunity Commission v. Boxwood Hotels LLC et al., case number 1:24-cv-00902, in the U.S. District Court for the Western District of New York; (5) U.S. Equal Employment Opportunity Commission v. Lush Handmade Cosmetics LLC et al., case number 5:24-cv-06859, in the U.S. District Court for the Northern District of California; (6) U.S. Equal Employment Opportunity Commission v. Starboard Group Inc. et al., case number 3:24-cv-02260, in the U.S. District Court for the Southern District of Illinois; and (7) U.S. Equal Employment Opportunity Commission v. Brik Enterprises Inc. et al., case number 2:24-cv-12817, in the U.S. District Court for the Eastern District of Michigan.

[2] Counsel for the EEOC clarified that it sought dismissal with prejudice, to make clear to the defendant that the EEOC would not try to refile the matter at any point.