Gender Restrictions Clash with Federal Anti-Discrimination Rules
President Donald Trump’s executive order limiting the federal government’s recognition of gender to just two categories is expected to have a significant impact on the Equal Employment Opportunity Commission (EEOC) and its approach to transgender rights, according to legal experts. Despite the order, Title VII of the Civil Rights Act of 1964 continues to provide protections against discrimination for transgender workers.
Experts anticipate, however, that the executive order, coupled with changes in the EEOC’s composition, will likely result in less agency litigation on behalf of transgender workers. “Given the lack of an EEOC quorum, what I don’t think we’re going to see short term is a groundswell of EEOC systemic litigation targeting transgender status,” said Christopher DeGroff, an employment and labor partner at Seyfarth Shaw LLP in Chicago.
Just over a week after the order was issued, EEOC Acting Chair Andrea Lucas announced that the agency would be rolling back gender ideology information on its website and in guidance documents. Experts expect the order’s implementation to face legal challenges from individuals and advocacy groups.
“I am worried about some workplaces rolling back their protections for transgender employees prematurely before any changes are enforceable. That is a huge danger,” said Caius Willingham, senior policy analyst for Advocates for Trans Equality. The group expects to legally challenge the executive order and any resulting changes in guidance.
Trump’s firing of Democratic EEOC commissioners Charlotte Burrows and Jocelyn Samuels on January 29 further complicates the situation. The departures of Burrows and Samuels, who were appointed by President Joseph R. Biden, brought the EEOC below the three commissioners needed for a quorum.
A quorum is required for major enforcement actions, issuing or rescinding guidance, and rule-making, explained Mr. Willingham. Additionally, President Trump appointed Andrew Rogers as acting general counsel, a move that further signals the administration’s intentions.
“His appointment will amplify, rather than challenge or mitigate, Acting Chair Lucas’ stance on key issues,” said DeGroff. Kelly Thoerig, Richmond, Virginia-based EPLI and wage and hour product coverage leader at Marsh LLC, noted that changes within the EEOC underscore the importance of having adequate employment practices liability insurance.
Sheila M. Abron, an employment law partner at Fisher Phillips LLP in Columbia, South Carolina, emphasized that even with the shift in agency focus, “Title VII is still the law of the land.” She also advised that “Companies should also be aware of their compliance obligations with state laws that protect workers against discrimination.” Several states recognize nonbinary as a third gender, Ms. Abron said.
Sam M. Schwartz-Fenwick, a labor and employment partner at Seyfarth Shaw in Chicago, stated that text of the executive order regarding the protection of the rights of “biological women” could lead to amendments of Title VII and “raises the specter of the government targeting employers with inclusive bathroom policies for creating hostile work environments for ‘biological women.’ ” He also noted a conflict between this text and the Supreme Court’s 2020 ruling in Bostock v. Clayton County, which held that Title VII protects employees against discrimination based on sexual orientation or gender identity.
If the federal government follows through on the directives of the order, “we’re going to see a real shift in legislative priorities in the transgender space with the government. They will really focus on entities that are providing protection to transgender workers instead of companies who aren’t,” Mr. Schwartz-Fenwick said.
People who believe they are facing workplace discrimination should still follow company reporting policies, Abron said. “Recognizing two genders on an official document doesn’t necessarily mean we’re doing away with discrimination protections, and there’s a lot of case law out there that still provides protection.”
Attack on DEI May Prompt Reverse Discrimination Claims
Experts anticipate a rise in lawsuits related to claims of reverse discrimination and disputes over the legality of companies’ diversity, equity, and inclusion (DEI) initiatives following executive orders designed to end such programs. With the rise of questions as to what is an acceptable and unacceptable DEI initiative, many in the plaintiff’s bar will consider more litigation, said Chris DeGroff. “Uncertainty in the law breeds litigation, and this fog that everyone has been operating under over the last few days and not knowing which way is up will be capitalized on by the plaintiffs bar,” he said.
Employers should evaluate the coverage under their employment practices liability insurance limits and/or consider purchasing excess limits, said Kelly Thoerig. Sam M. Schwartz-Fenwick, said that companies considering changing their DEI initiatives “should have their lawyers on speed dial.”
