On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) issued the final version of its Enforcement Guidance on Harassment in the Workplace (the “Guidance”) by a 3-2 vote. The Guidance updates prior EEOC pronouncements about how Title VII will be interpreted and applies to claims of unlawful harassment based on race, disability, national origin, gender identity, sex, and other characteristics. The EEOC finalized the Guidance (which was initially issued in October 2023) after receiving considerable public comment, and the agency included 77 scenarios which explained how an employer might (or might not) violate Title VII under specific facts and circumstances.

As we previously wrote, one provision of the Guidance addresses harassment based on sexual orientation and gender identity. Specifically, the Guidance states that “harassing conduct based on sexual orientation or gender identity includes… harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex, repeated and intentional use of a name or pronoun inconsistent with the individuals known gender identity (misgendering), or the denial of access to a bathroom or other sex – segregated [sic] facility consistent with the individual’s gender identity.”

The Guidance was immediately challenged in court. Attorneys General for 18 states, led by Tennessee, sued two weeks after its issuance, claiming that the EEOC had no legal authority to effectively amend Title VII by creating new protections that were not authorized by Congress. They also argued that the landmark 2020 Supreme Court decision that the EEOC relied upon, Bostock v. Clayton County, only held that it was discriminatory to fire someone because of their sexual orientation or gender identify, and the Supreme Court expressly declined to address issues about “bathrooms, locker rooms and dress codes” in Bostock. The AGs claimed that the states are harmed because the Guidance interferes with the states’ “preferred gender ideology.” For example, Arkansas has passed a “Given Name Act” which prohibits a school employee from using a name other than that listed on a student’s birth certificate, absent parental permission.

One week after the Tennessee suit was filed, the Texas AG joined the fray, filing a motion in an existing case in Texas federal court to challenge the gender identity portions of the Guidance on essentially the same grounds. The Texas AG also argued that similar EEOC gender identity guidance issued in 2021 was vacated as unlawful by that Texas court in 2022. In the new motion, the Texas AG admitted that Texas has employment policies that violate the gender identity provisions of the Guidance but claimed that enforcement “fundamentally infringes on the sovereignty of Texas.”

Each suit seeks an injunction to prevent enforcement of the gender identity portion of the Guidance. The fact that the Texas AG is pursuing the challenge before the same court that vacated similar EEOC guidance two years ago makes it likely that the Court may vacate the Guidance a second time, or even issue a nationwide injunction prohibiting enforcement of the gender identity portion of the Guidance. Stay tuned as we follow both cases to see if the disputed Guidance remains in effect.