Ex-EEOC Worker Tests Attack on Agency Transgender Policy Shifts

A hostile work environment complaint against the EEOC will try out a new employment law approach to challenging the commission’s rollback of its protections for transgender workers.

Ex-Equal Employment Opportunity Commission employee Marc Seawright says the agency’s erasure of transgender bias protections internally, as well as its pause on processing such discrimination charges from the public, bolster his bias claims.

The wide-ranging federal equal opportunity complaint confronts several aspects of the EEOC’s stance on transgender workers under Acting Chair Andrea Lucas. Unlike other challenges to the Trump-era shift that leverage administrative law questions, Seawright’s allegations—recently made public—use the same employment law the EEOC enforces.

Part of Seawright’s challenge will be to “tie overarching policies” that changed at the EEOC to an impact on his ability to do his job, said Jackson Lewis attorney Richard Mrizek.

Seawright’s complaint cites changes that caused him “severe distress, anxiety, depression, sleeplessness, anger, and sadness.”

That totality of circumstances created a hostile work environment for him and other LGBTQ+ employees in violation of Title VII of the 1964 Civil Rights Act, the complaint said.

Hostile work environment claims are weighed on severity and pervasiveness of discriminatory or harassing acts. Less severe, but more frequent action could also constitute a hostile work environment, Mrizek said.

An EEOC spokesperson said the Commission doesn’t comment on personnel matters.

A Jan. 20 executive order from President Donald Trump directs agencies to recognize only “two sexes,” and “correct the misapplication” of the US Supreme Court’s 2020 decision in Bostock v. Clayton County, which held Title VII prohibits sexual orientation and gender identity-based employment bias.

Trump’s order asked the EEOC to cancel workplace harassment guidance that told employers they can’t use pronouns inconsistent with a worker’s known gender identity or deny access to facilities consistent with that identity.

Agency Animus

When Lucas was named acting chair in January, she listed “defending the biological and binary reality of sex and related rights” among her priorities.

Days later she announced a goal to rescind the Biden-era workplace guidance, adding that “sex is binary (male and female) and immutable. It is not harassment to acknowledge these truths — or to use language like pronouns that flow from these realities, even repeatedly.”

By “encouraging and legitimizing” misgendering, Lucas’s statements “increase the risk of workplace hostility, embolden discriminatory conduct, and undermine the EEOC’s fundamental mission,” Seawright’s complaint said.

The statements could be evidence of “discriminatory animus,” said Stephanie Rapp-Tully, a partner at Tully Rinckey PLLC. While a business decision or poor management isn’t illegal, a connection to such animus is part of what a judge will look for in a hostile work environment claim.

Seawright needs to connect Lucas’s statements to the actions taken, Rapp-Tully added.

The complaint cites agency decisions to remove its internal non-discrimination and inclusion policy regarding gender identity and sexual orientation, and disbandment of its LGBTQ+ employee resource group.

Ending an ERG could be used as evidence of animus, but whether it would be a discriminatory action itself raises questions about whether employees are entitled to these groups, Rapp-Tully said.

Seawright’s complaint also points to public-facing agency changes.

He cites new limits on processing of transgender bias charges, the takedown of an app that lets employees display pronouns in their emails, and removal of “any recognition” of transgender and nonbinary people from EEOC public-facing materials.

“What’s particularly strong with his complaint, is that it’s not only about having his identity erased as a transgender person at the agency, which is something all of the transgender and nonbinary employees experienced, but also that he was forced because of his job to participate in that erasure,” said Chai Feldblum, a former Democratic EEOC commissioner.

Lucas said in January the removal of the pronoun app, nonbinary markers on charge intake forms, and materials “promoting gender ideology” were in response to Trump’s EO.

During her recent Senate confirmation hearing she said she doesn’t believe the agency is independent from the president’s authority.

Seawright’s allegations will be evaluated in part based on how direct potentially discriminatory conduct was. That complicates the claims citing broader EEOC policy shifts, labor attorneys said.

Indirect incidents of discriminatory treatment, which are not squarely targeted at the worker filing a charge, could contribute to a hostile work environment claim, but those actions are viewed with a lens of less severity, Mrizek said.

‘Forced Involvement’

Seawright said his “forced involvement” in his role as director of information governance and strategy with wiping agency references to gender identity, along with his exclusion from workplace discussions, had an “immediate and profound” toll on his mental health, leading to his resignation.

The underlying question will be how Lucas’s shifts changed the terms and conditions of his employment, Rapp-Tully said.

Seawright’s EEO complaint isn’t centered on challenging the constitutional and administrative law basis for the commission’s shift away from gender identity protections.

But if the court doesn’t want to address the agency’s authority to change its transgender bias enforcement approach, it may choose not to rule on Seawright’s complaint, said Marjorie Mesidor, a founding partner at Mesidor PLLC.

The complaint’s “booby traps” could lead a judge to rule there is no standing or that the case isn’t ripe, as the court may decline to issue an advisory opinion about processing transgender bias charges without claims before it from a worker whose EEOC charge wasn’t considered, Mesidor said.

Seawright must first allow the agency to investigate his claims, as part of the federal government’s process. But once that’s done, there’s a chance to file a lawsuit in federal court or seek a hearing with an EEOC administrative judge.

Seawright’s lawyers plan to go to federal court as early as possible, said Rebecca Peterson-Fisher, an attorney with Katz Banks Kumin representing Seawright.

“We can’t have any confidence in the EEOC at this point to protect someone like Marc or to implement Bostock,” Peterson-Fisher said.