A federal court in Texas has ruled that parts of the U.S. Equal Employment Opportunity Commission’s (EEOC’s) enforcement guidance on harassment are unlawful. At the heart of the issue is the law’s definition of “sex,” which the court held as too expansive, and that the U.S. Supreme Court did not expand the definition of “sex” to include sexual orientation or gender identity. As of May 15, portions of the EEOC’s guidance have been vacated nationwide.
On April 29, 2024, the EEOC published its Enforcement Guidance on Harassment in the Workplace to address how harassment based on race, color, religion, sex, national origin, age, disability, or genetic information is defined and provide an analysis for determining whether employer liability is established. Within the guidance, the EEOC defined “sex” as pregnancy, childbirth, and related medical conditions, as well as sexual orientation and gender identity. The agency took the position that under Title VII, a plaintiff could allege that harassment on the basis of sex can include “denial of access to a bathroom or other sex-segregated facility consistent with [an] individual’s gender identity,, as well as “repeated and intentional use of a name or pronoun inconsistent with [an] individual’s known gender identity.”
Notably, acting EEOC Chair Andrea Lucas opposed the agency’s majority decision.
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