Transgender Workers’ Options Shrink With EEOC Shift (Correct)

The EEOC’s push to dismiss its transgender bias cases and scrutinize related charges narrows the legal pathways for workers accusing their employers of gender-identity discrimination.

The Equal Employment Opportunity Commission recently moved to drop at least seven lawsuits it filed on behalf of transgender workers. It also paused its processing of transgender bias charges and removed non-binary gender markers from intake forms to align with President Donald Trump’s executive order proclaiming that the government recognizes only two immutable sexes.

This enforcement pivot leaves gender non-conforming workers to pursue their own discrimination lawsuits or turn to the states, as they navigate the conflict between current EEOC guidance and the new administration’s hostility toward Biden-era policies.

“For the next four years, an LGBTQ person should not assume the EEOC is going to be a welcoming place for their charge,” said Chai Feldblum, a former Democratic commissioner.

The US Supreme Court’s 2020 Bostock v. Clayton County decision found that Title VII of the 1964 Civil Rights Act bars discrimination on the basis of gender identity and sexual orientation. It’s foundational to the EEOC’s 2024 harassment guidance, which says employers can’t misgender workers or bar them from using bathrooms that align with their gender identity.

Trump’s executive order challenges the Biden administration’s interpretation of Bostock. The EEOC’s new acting chair, who voted against the guidance last year because she argued it went beyond the ruling’s scope, plans to rescind it when there is a quorum of three commissioners to vote.

Republican-led states and conservative groups have taken a similar stance in challenging the guidance as too broad, noting that Bostock didn’t address bathrooms or pronoun usage.

The EEOC is “between a rock and a hard place” to reconcile Bostock and the Trump order, said Victoria Lipnic, a partner at Resolution Economics and a Republican former EEOC acting chair.

Charge Processing

Title VII requires workers to file a charge with the EEOC or equivalent state agency before suing.

The EEOC receives tens of thousands of charges a year but files lawsuits for workers on only a small fraction.

In fiscal year 2024, the agency received 88,531 new charges of discrimination and filed 111 lawsuits, according to its annual performance review. In general, it would be more expensive for workers to file their own suits.

Since Bostock, the number of charges based on sexual orientation and transgender status increased. The EEOC received roughly between 1,000 and 1,800 of those charges per fiscal year between 2014 and 2020. Between 2021 and 2024, it received between about 1,900 and 3,000 of those charges per year, according to commission data.

“I do not believe the EEOC could turn away transgender plaintiffs trying to assert their rights,” said Jocelyn Samuels, a Democratic EEOC commissioner fired by Trump. “The likelihood that EEOC would choose to litigate any of these cases seems significantly reduced.”

Following its transgender bias litigation retreat, the EEOC may need to publicly clarify that workplace anti-bias laws remain unchanged and that the agency will still welcome and investigate discrimination charges based on LGBTQ+ status, Feldblum said.

“That is a question and answer that is dramatically missing from their recent FAQs,” she said.

Even as gender identity-related charges are under review, the EEOC will issue a notice of right to sue if they are requested by a charging party, as statutorily required, EEOC spokesperson Victor Chen said in a statement on Jan. 31. The commission has since declined further comment.

A right to sue letter allows a worker to file a discrimination lawsuit in federal court. After 180 days from the filing of a charge, the EEOC must issue a right to sue requested by a worker. The agency will provide the letter earlier only if it won’t finish its investigation within 180 days.

Charging parties alleging gender identity-based discrimination should request a right to sue letter as soon as they can, Feldblum said.

“Just because the EEOC is not going to be helpful does not mean they won’t have a strong legal claim in court,” Feldblum said.

Dismissed Cases

Requests like the EEOC’s to withdraw from a case “are routinely granted,” and there’s hardly any pushback from the court, said Christopher Trebilcock, an employment law litigator at Clark Hill PLC.

But judges have the authority to scrutinize the government’s rationale, particularly in cases that already require substantial judicial resources for litigation, he said.

The EEOC’s motions to dismiss said they would be effective 30 days after the courts rule on them, giving charging parties a window of time to seek private counsel.

Public interest law firms and legal groups may also find themselves intervening more in litigation where they believe the federal government’s position is lacking or may seek to represent workers.

The Gender Equality Law Center intends to file a motion to intervene in one of the cases the EEOC seeks to drop. The commission sued on behalf of a transgender hotel housekeeper who claimed they faced misgendering and derogatory comments at work in violation of Title VII.

Vico Fortier, an attorney with the center, said they hope the change will have a “minimal impact” on the case if the firm can step in as counsel right away.

Workers may also try to file charges with state fair employment agencies and sue in state courts.

Twenty-four states, plus Washington, D.C., ban gender identity bias in the workplace either through state law or regulation, according to Bloomberg Law data. Some state laws apply to more employers and provide stronger remedies than Title VII.

The EEOC redirecting the federal government’s focus away from LGBTQ+ workplace discrimination cases will likely encourage states to enhance their enforcement efforts and take on a more active role in investigating complaints, employment attorneys said.

But it would still “be very, very unfortunate not to have the full weight of the federal EEOC on behalf of people who have been discriminated against,” Feldblum said.