Recent executive orders have caused the Equal Employment Opportunity Commission (EEOC) to abandon litigation and guidance on LGBTQ+ protections and other areas that were priorities during the Biden administration.
LGBTQ+ Issues
On his first day in office, President Trump signed an executive order directing the federal government to define “sex” as only male or female and for that to be reflected on official government documents such as passports, policies, and federal prison assignments. The Order also directs federal agencies to use the term “sex” instead of “gender” and to remove statements, policies, and communications that “promote gender ideology.” The order further requires federal agencies to give effect to the order’s definitions when applying their statutes, regulations, and guidance.
In response to the order, the EEOC has taken several steps including:
- Instituting plans to rescind its 2024 harassment guidance directing employers to allow employees to use bathrooms that align with their gender identity.
- Removing non-binary gender markers from bias charge intake forms.
- Moving to dismiss pending federal court cases involving “deadnaming,” “misgendering,” and harassment based on gender identity.
Artificial Intelligence and Discrimination Issues
Another recent executive order signed by President Trump involves developing artificial intelligence (“AI”) “free from ideological bias or engineered social agendas.” This order impacts new EEOC guidance regarding the use of AI by employers in hiring practices. Recent changes seen in this area include:
- The EEOC has deleted from its website guidelines that outlined employer AI bias risks.
- The EEOC has removed its 2023 technical assistance document that provided that the use of algorithmic hiring software and HR tools can lead to disparate impact discrimination in hiring practices.
- The EEOC is currently reviewing its guidelines that suggested an employer can be responsible under Title VII for using discriminatory AI.
The Pregnant Workers Fairness Act and Related Issues
In 2024, the EEOC issued its final rule implementing the Pregnant Workers Fairness Act (“PWFA”). The PWFA requires employers to provide reasonable accommodations for an employee or applicant’s known limitations relating to pregnancy, childbirth, or related medical conditions. Because of its inclusion of abortion protections, the final rule led to several legal challenges.
Though President Trump has not commented or released an executive order directly impacting the PWFA or the final rule, EEOC Acting Chair Andrea Lucas voted against the final rule in 2024. We expect Lucas to re-evaluate or request a rescission of the final rule in the near future.
KMK Law will continue to monitor new developments affecting employers.
