Court Vacates Portion Of EEOC’s Harassment Guidance
On May 15, 2025, a Texas federal court decided that the 2024 Enforcement Guidance on Harassment in the Workplace issued by the U.S. Equal Employment Opportunity Commission (EEOC) during the Biden Administration unlawfully expanded the definition of “sex.” The court vacated portions of the Guidance. The Trump Administration’s EEOC immediately adopted the court’s order by posting information on its website to demonstrate the portions of the Guidance that have been vacated.
At issue is the extent to which Title VII’s prohibition against sex discrimination applies to workplace policies affecting the LGBTQ+ community. The State of Texas and The Heritage Foundation sued the EEOC over its position, set forth in the Harassment Guidance, that an employer using a pronoun inconsistent with a worker’s known gender identify or denying access to a bathroom or locker room consistent with the individual’s gender identity is discriminatory under Title VII.
The EEOC’s position was based upon its broad interpretation of the 2020 U.S. Supreme Court decision in Bostock v. Clayton County that an employer who discharges an employee because of sexual orientation or transgender status violates Title VII’s prohibition against sex discrimination. As the federal court recognized, however, the Supreme Court’s decision in Bostock was a narrow one, and the Court expressly declined to address “bathrooms, locker rooms, or anything else of the kind,” leaving such “other policies and practices . . . [as] questions for future cases.” Thus, the Texas federal court reasoned that the EEOC’s Guidance “fundamentally reshapes the scope of Title VII” and exceeds the EEOC’s authorization.
The court vacated all language in the Harassment Guidance defining sex to include sexual orientation and gender identity, an entire section outlining harassment based on sexual orientation and gender identity, and all language defining sexual orientation and gender identity as a protected class. In announcing the court’s decision, the EEOC pointed out that President Trump’s Executive Order 14168 “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” already directed the EEOC to rescind portions of the Guidance, but that the EEOC has been unable to do so because it currently lacks a quorum.
The impact of this complicated issue upon Nevada employers is very limited. Clearly the EEOC will not be appealing the Texas federal court’s decision. Thus, for the time being, the EEOC is not likely to issue harassment charges based upon issues like pronouns or bathroom assignments. Nevertheless, it should be business as usual for Nevada employers. As the Supreme Court has already made clear, an employee’s sexual orientation or transgender status is not relevant to employment decisions. Moreover, unlike Title VII, Nevada’s fair employment practices law expressly protects gender identity and sexual orientation.
If you have questions about this case, the EEOC’s Harassment Guidance, or the scope of Nevada law, please contact a KZA attorney.
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