Numerous State Attorney Generals filed suit in May 2024 claiming the Equal Employment Opportunity Commission (“EEOC”) enforcement guidance on harassment in the workplace went too far in trying to legislate protections around gender identity that go beyond what the U.S. Supreme Court established in the 2020 Bostock v. Clayton County decision.

The last time the EEOC published guidance on this topic was nearly a quarter of a century ago. The EEOC noted changes in the law since its previous updates, including the Bostock decision where the U.S. Supreme Court held that Title VII’s prohibitions on discrimination because of sex includes discrimination on the basis of sexual orientation and gender identity.

In their lawsuit, the states indicate that the EEOC’s enforcement guidance on harassment, finalized in April 2024, imposes numerous gender identity mandates without action from Congress (that the EEOC did not have the authority to make these substantial rule changes).

The states specifically argue that the EEOC guidance requires that employers use workers’ preferred pronouns, allow transgender workers to use restrooms that correspond with their gender identify and stop enforcing dress codes that require workers to dress in a way that corresponds to their biological sex, in order to comply with Title VII.

The states’ lawsuit says that the EEOC relies heavily on Bostock but argues that Bostock  declined to consider whether Title VII protections extended to gender identity accommodation such as bathroom access or dress codes and that the EEOC in essence amended Title VII without an act of Congress.

The lawsuit was filed in the U.S. District Court for the Eastern District of Tennessee. The court’s decision and expected appeals will have far reaching consequences regarding the EEOC’s new guidance rules on harassment.

Questions? Contact Attorney Joseph Laverty in our Davenport office at 563-333-9102 or by email