On May 15, a federal judge partially overturned guidance from the Equal Employment Opportunity Commission (EEOC) that explained how certain behavior toward employes based on their preferred gender identity can constitute illegal workplace harassment. Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas ruled that the EEOC’s guidance went beyond the authority of the 1964 Civil Rights Act and Supreme Court precedent. However, the Supreme Court ruled in 2020 (in Bostock v. Clayton County) that firing an employee based on their sexual orientation or gender identity would violate their right to protection from sex-based discrimination.   

The EEOC issued the guidance in question, entitled “Enforcement Guidance on Workplace Harassment,” and approved it by a 3-2 vote in April 2024. EEOC guidance provides more detail on agency policy and provides examples of how the policy would pertain to specific workplace situations. It is intended to provide clarity and guidance to employers about their legal responsibilities to provide discrimination-free workplaces, and to inform workers about their rights under the law. The guidance issued in 2024 included updates on how harassment of an employee based on their gender identity could constitute illegal, sex-based harassment, including repeated or intentional refusal to respect a transgender or nonbinary employee’s preferred name and pronouns. The state of Texas sued the EEOC, seeking to block this guidance.  

Impact: 70 percent of transgender respondents to a 2022 survey said that they had experienced workplace discrimination or harassment based on their sexual orientation or gender identity, including verbal, physical, or sexual harassment, being fired or not hired, or being denied access to workplace facilities or benefits. The court overturning these sections of the harassment guidance does not directly change the law, but it will make it harder for LGBTQ workers to find or experience fair, safe employment if the EEOC is unwilling to offer real enforcement of their rights. Attempts to carve out and narrow down who can be protected from gender and sex-based discrimination will also ultimately harm all workers, by giving employers more leeway to engage in transphobic or biased behavior.