By Ty Hyderally, Esq. and Jamie Davila, Esq.

May 20, 2025

The EEOC published their final guidance on workplace harassment updating the EEOC’s position on the legal standards and employer liability under federal discrimination laws on April 29, 2024. In this update, the EEOC modified their guidance to make it align with a 2020 United States Supreme Court decision.  In that 2020 decision, Bostock v. Clayton County, Georgia, 590 U.S. 644 (2020), the USSC dealt with the issue of whether or not Title VII of the Civil Rights Act of 1964 protected employees against discrimination on the basis of their sexual orientation or gender identity.  In that case, the Court held that if an employer fired an employee for being homosexual or transgender, then that is a violation of Title VII.  The Court held that the decision for the termination was routed in firing a person for traits or actions, it would not have questioned in members of a different sex. The court found that sex plays a necessary and undisguisable role in the decision, which is exactly what Title VII forbids.  This case was consolidated with two other sexual orientation cases (Altitude Express, Inc. v. Zarda and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission) and decided on June 15, 2020, in a decision that is considered one of the most significant decision in the arena of LGBT rights.

In the Bostock matter, the County terminated George Bostock, allegedly because he wanted to play in a gay softball league after work.  Supreme Court Justice, Neil Gorsuch, wrote the majority opinion in a 6-3 split that Mr. Bostock had protections under Title VII for his claim.  The decision centered on Justice Gorsuch’s analysis of the fact that the employer was discriminating against Mr. Bostock because he was attracted to men as opposed to women.  The Court held that because the discrimination centered around the fact that the employee had an attraction to a specific gender, this was discrimination that was due to the employee’s sex.

The EEOC guidance follows the Bostock opinion and notes that the repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity could violate Title VII.  Further, denying a person access to a bathroom due to that person’s gender identity, could also violate Title VII. The EEOC guidance notes that generally, one needs to prove intentional or known behavior that is repeated and based upon the individual’s known gender identity.

With this as the backdrop, we have our current landscape… Executive Orders.  On January 20, 2025, President Donald Trump signed Executive Order 14168.  This Executive Order noted that the federal government recognizes only two genders, male and female. The Executive Order instructed the EEOC to rescind portions of its harassment guidance that were inconsistent with Executive Order 14168, which in effect gutted the EEOC guidance and is inconsistent with the Bostock decision.  However, due to President Trump’ s Executive Order, the EEOC subsequently modified its position.  On January 28, 2025, the EEOC rolled back many of its regulations from the Biden-era, related to discrimination and harassment against LGBTQ+ people. On May 15, 2025, a federal court vacated portions of the EEOC’s workplace harassment guidance, specifically, the guidance on sexual orientation and gender identity. The court’s reasoning for vacating the portions of the EEOC guidelines was that the EEOC allegedly “exceeded its statutory authority by issuing it and by requiring bathroom, dress, and pronoun accommodations inconsistent with the text, history, and tradition of Title VII and recent Supreme Court precedent.” Specifically, the court concluded that the EEOC may not legally: define sex to include sexual orientation and gender identity and define sexual orientation and gender identity as a protected class under federal law and prohibit employers from repeatedly and intentionally using pronouns for transgender employees.

What Does This Mean for Employers?

Employers should be informed that Bostok is still good law and should continue to be followed. However, courts throughout the country remain split on whether the court decision extends to bathrooms, locker rooms, showers, or similar facilities used by employees, and the use of pronouns and names.[1] Employers are encouraged to follow local and state guidance on this topic. In New Jersey for example, the Law Against Discrimination (LAD) prohibits discrimination and harassment in employment, places of public accommodation, and housing based on actual, or perceived sex gender, sexual orientation, gender identity, gender expression, and many other protected characteristics. The LAD requires individuals be treated consistent with their gender identity or expression. The LAD thus protects Meaning that transgender individuals in how they dress at work or with regard to what bathroom or changing room they chose to use.  Further, transgender employees in New Jersey are protected when they chose to be addressed in a certain manner consistent with their transgender identity.  Those employees do not need to show “proof” of their gender to exercise these rights.

If you or someone to you know is experiencing harassment or discriminant treatment due to your gender, sexual orientation, or identity, please contact a lawyer who concentrates in the arena of Employment Law.  Our firm has been concentrating in employment law for over twenty-two (22) years!

En nuestra firma hablamos español. This blog is for informational purposes only. It does not constitute legal advice and may not reasonably be relied upon as such. If you face a legal issue, you should consult a qualified attorney for independent legal advice regarding your particular set of facts. This blog may constitute attorney advertising. This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state or jurisdiction.

[1] Nonnie L. Shivers, Hera S. Arsen, Federal Court Nullifies EEOC Guidance on LGBTQ+ Protections, The National Law Review, May 17, 2025, https://natlawreview.com/article/federal-court-nullifies-eeoc-guidance-lgbtq-protections (Last visited on May 20, 2025).