On January 28, 2025, Andrea Lucas (R), the acting chair of the Equal Employment Opportunity Commission, issued a statement outlining her views on gender identity in the workplace, and listing a series of actions she has taken to “return” the agency “to its mission protecting women from sex-based discrimination in the workplace by rolling back the Biden administration’s gender identity agenda.” Among the actions Lucas identified that she has and will take to achieve this end include prioritizing compliance, investigations, and litigation to “defend the biological and binary reality of sex and related rights, including women’s rights to single sex spaces at work”; removing EEOC employees’ ability to indicate pronouns in their communications; eliminating the use of the non-binary “X” gender marker for charges; and removing materials “promoting gender ideology” on the Commission’s internal and external websites.
Lucas’s statement comes on the heels of the president’s recent Executive Order 14166, which, among other things, directs all federal agencies and federal employees to “enforce laws governing sex-based rights, protections, opportunities, and accommodations to protect men and women as biologically distinct sexes” and orders the removal of statements, policies and other communications that “promote or otherwise inculcate” gender ideologies.
In her statement, Lucas also indicated that there were certain documents relating to gender identity that she could not unilaterally remove or modify, because doing so would require a majority vote of the full Commission. These include the Commission’s Enforcement Guidance on Harassment in the Workplace (issued by a 3-2 vote in 2024); the EEOC Strategic Plan 2022-2026 (issued by a 3-2 vote in 2023); and the EEOC Strategic Enforcement Plan Fiscal Years 2024-2028 (issued by a 3-2 vote in 2023). Lucas indicated that while she cannot currently rescind these documents without a majority vote of the Commission, she remains opposed to them.
The day prior to Lucas’s statement, the president terminated two sitting Democratic commissioners, leaving Lucas and Democratic Commissioner Kalpana Kotagal as the only two members of the five-member Commission, and depriving the agency of a voting quorum. Until the agency has at least three sitting members, it will be unable to consider revocation of those policy documents. With respect to ordinary operations, however (such as charge intake, investigations, and the like), these efforts will continue: In December 2024 the Commission unanimously approved a resolution delegating the routine operations of the agency to senior career staff in the event it lost its quorum.
Key Takeaways for Employers
Lucas’s statement indicates what her priorities are for EEOC enforcement with respect to gender-identity issues. It is important for employers to bear in mind, however, that the U.S. Supreme Court in Bostock v. Clayton County held that Title VII’s prohibition on sex discrimination and sexual harassment extends to discrimination and harassment on the basis of sexual orientation and gender identity. Unless and until the Court revisits that decision, individuals protected by Title VII can continue to file charges of discrimination relating to LGBT status under federal law. It is unclear whether going forward the agency itself will bring litigation relating to these issues, although individual employees may bring suit in federal court directly after exhausting administrative remedies.
Perhaps more important, more than half of states and the District of Columbia have laws that explicitly prohibit discrimination and harassment on the basis of sexual orientation and gender identity or have interpreted their state laws prohibiting sex discrimination and harassment to include LGBT status. These laws remain unchanged.
With the federal government’s stated priority of ensuring access to single-sex facilities, employers may nevertheless find themselves facing potentially conflicting obligations under federal and state law and are advised to consider review of existing gender-identity related policies and practices with counsel.
Littler’s Workplace Policy Institute (WPI) will continue to keep readers apprised.
