EEOC Orders Review of LGBTQ+ Discrimination Claims

Author: Emily Scace, Brightmine Senior Legal Editor

January 31, 2025

In response to a recent Executive Order (EO) from President Trump, the Equal Employment Opportunity Commission (EEOC) has directed its staff to elevate discrimination claims implicating sexual orientation and gender issues for review at agency headquarters.

Executive Order 14168, which President Trump issued on January 20, directed federal agencies including the EEOC to adopt strictly biological definitions of "sex," "male," "female" and related terminology when interpreting or applying laws and guidance. The EO also directed the EEOC to rescind its 2024 Enforcement Guidance on Harassment in the Workplace, a wide-ranging document that included discussion of gender identity harassment.

Acting EEOC Chair Andrea Lucas stated that she does not have the unilateral authority to rescind or modify the 2024 harassment guidance but believes it to be "fundamentally flawed." Because the EEOC currently lacks a quorum following President Trump's dismissal of two Democrat-appointed commissioners, it cannot conduct significant actions until at least one additional commissioner is appointed.

"When the Commission regains a quorum, Acting Chair Lucas will propose the rescission of those portions of the Harassment Guidance that conflict with applicable executive orders," an agency representative confirmed in a statement provided to Brightmine. "In the interim, Acting Chair Lucas has directed that all charges that implicate Executive Order 14168…be elevated for review at EEOC headquarters to determine how to comply with this executive order prior to the rescission or revision of the Harassment Guidance."

In 2020, the Supreme Court held in Bostock v. Clayton County that discrimination based on sexual orientation or gender identity is a form of unlawful sex-based discrimination under Title VII of the Civil Rights Act of 1964. While that decision declined to address related issues such as pronouns and bathroom-facility access, the EEOC had previously interpreted its holding broadly and issued guidance taking the position that, for example, repeatedly and intentionally misgendering a person or denying them access to a facility corresponding with their gender identity could constitute unlawful harassment.

However, the recent shakeup in EEOC leadership under President Trump has brought changes in messaging and priorities. Acting Chair Lucas said in a January 28 statement that "defend[ing] the biological and binary reality of sex and related rights" is a top priority and announced that the agency has taken various internal and public-facing actions to remove content related to "gender ideology" from its materials.

The EEOC's processing of claims is a critical step in the enforcement process for individuals who believe they have experienced workplace discrimination in violation of federal law. Under most of the laws the EEOC is charged with enforcing, an individual alleging discrimination cannot proceed directly to filing a lawsuit against the employer. They must first file a charge with the EEOC (or a state or local fair employment practice agency) and wait for the agency to conclude its investigation and issue a "Notice of Right to Sue."

An EEOC representative told Brightmine that if a complainant requests a notice of right to sue for a case implicated by EO 14168, the EEOC will issue the notice as required.

Despite recent developments, the Bostock prohibition of sexual orientation- and gender identity-based discrimination is still federal law. In addition, many state and local antidiscrimination laws offer specific protections based on sexual orientation, gender identity and gender expression.