Recently, a federal district court in Texas vacated guidance from the U.S. Equal Employment Opportunity Commission (EEOC) related to gender identity harassment. But California employers need to be aware of their continuing legal obligations around gender identity and sexual orientation.
Specifically, the court ruled that parts of the EEOC’s “Enforcement Guidance on Harassment in the Workplace,” which defined “sex” under Title VII of the Civil Rights Act of 1964 to include gender identity and sexual orientation, and described unlawful harassment based on gender identity and sexual orientation, were contrary to law and must be vacated (State of Texas and The Heritage Foundation v. Equal Employment Opportunity Commission, et al., No. 2:24-CV-173-Z (N.D. Tex. May 15, 2025)).
Title VII, the EEOC’s Enforcement Guidance and Bostock
A federal law, Title VII protects employees from workplace discrimination based on race, color, religion, sex or national origin. It also defines “sex” to include biological sex (male or female) as well as pregnancy, childbirth and related medical conditions.
The EEOC enforces Title VII and maintains the “Enforcement Guidance on Harassment in the Workplace” to provide “legal analysis of standards for harassment and employer liability applicable to claims of harassment under the equal employment opportunity (EEO) statutes enforced by the Commission.” This guidance contains numerous examples of conduct that the EEOC considers to be harassment in violation of Title VII.
Periodically, the EEOC updates this guidance, including most recently after the U.S. Supreme Court issued its Bostock v. Clayton County decision, holding that any employment decision that is based, at least in part, on a person’s sexual orientation or gender identity can constitute unlawful sex discrimination under Title VII.
In the current guidance — issued on April 29, 2024 — the EEOC references Bostock and defines “sex” under Title VII to include sexual orientation and gender identity. It also states that sex-based discrimination under Title VII includes harassing conduct such as repeated and intentional use of a name or pronoun inconsistent with an individual’s known gender identity (“misgendering”) and denying access to a restroom or other sex-segregated facility consistent with an individual’s gender identity. It also includes examples of what the EEOC considers harassing conduct based on sexual orientation and gender identity, including requiring an employee to wear clothing consistent with their biological sex.
The Lawsuit
The State of Texas and the Heritage Foundation filed a lawsuit challenging the portions of the EEOC’s enforcement guidance that relate to gender identity and sexual orientation on multiple grounds, including that the guidance is contrary to law.
And the court held that the EEOC’s enforcement guidance is, in fact, contrary to Title VII. First, the court concluded that the EEOC’s “metastasized definition of sex” beyond the biological binary (male and female) to include sexual orientation and gender identity is contrary to the plain language of Title VII. Second, it concluded that the enforcement guidance contravenes Title VII by “defining discriminatory ‘harassment’ to include transgender bathroom, pronoun, and dress preferences.” The court couldn’t find any legal support in Title VII or binding legal precedent for the EEOC’s position that employers must “accommodate” transgender employees’ dress, pronoun and bathroom preferences.
Based on its holding, the court vacated the following gender identity-related portions of the guidance:
- All language defining “sex” under Title VII to include “sexual orientation and gender identity;”
- All language defining “sexual orientation” and “gender identity” as a protected class; and
- Specific sections that describe harassment based on sexual orientation and gender identity.
Current Enforcement Guidance Status
Additionally, while the lawsuit was pending, President Trump signed Executive Order 14168 which states that it is the United States’ policy to recognize two sexes — male and female — and ordered the EEOC to rescind conflicting portions of the enforcement guidance. Although the EEOC currently lacks a quorum and is unable to rescind the guidance, Acting Chair Andrea Lucas issued a statement confirming the agency’s efforts to comply with the order.
Further, the EEOC recently announced that it has “labeled and shaded the vacated portions of the [Enforcement Guidance] on the agency’s website” to assist the public in following the Texas court’s decision.
What California Employers Need to Know
Even though those specific portions of the EEOC’s guidance have been vacated, it’s business as usual for California employers, because California’s Fair Employment and Housing Act (FEHA) is more expansive than federal law and prohibits harassment based on sexual orientation, gender identity and gender expression.
Unlike federal law, California law expressly identifies both gender identity and gender expression as protected classes so California employers can’t consider that when making employment decisions. Employees are also protected against harassment based on gender identity or gender expression.
In addition, California law gives employees the legal right to:
- Request to be identified by a chosen gender, name and/or pronoun; and
- Use restrooms or other workplace facilities that correspond to their gender identity or gender expression, regardless of their assigned sex at birth.
Employers that fail to honor an employee’s requested name, gender, pronoun or restroom/facility usage risk violating California law.
It is also unlawful for an employer to impose physical appearance, grooming or dress standards that are inconsistent with an applicant or employee’s gender identity or gender expression, unless the employer can establish a business necessity for the standard. California employers should review any such policies to ensure they are applied consistently and enforced in a non-discriminatory manner.
Despite the increased activity at the federal level regarding gender identity issues in the workplace, harassment and discrimination based on gender identity and gender expression continue to be unlawful in California, and employers must ensure that their policies and practices do not run afoul of California law.
Erika Barbara, Senior Employment Law Counsel, CalChamber
Harassment based on gender identity and gender expression are required topics in California’s mandatory harassment prevention training, which employers with five or more employees must provide to all employees and supervisors at least every two years. Does your organization need training? Our qualified attorney trainers can provide on-site, live harassment prevention training throughout California. See how we can help you meet your training requirements!
