Signaling a major shift in civil rights enforcement, the federal agency that enforces workplace anti-discrimination laws has moved to dismiss six of its own cases on behalf of workers alleging gender identity discrimination, arguing that the cases now conflict with President Donald Trump’s recent executive order, court documents say.
The requests by the U.S. Equal Employment Opportunity Commission mark a major departure from its prior interpretation of civil rights law, and a stark contrast to a decade ago when the agency issued a landmark finding that a transgender civilian employee of the U.S. Army had been discriminated against because her employer refused to use her preferred pronouns or allow her to use bathrooms based on her gender identity.
Just last year, the EEOC updated its guidance to specify that deliberately using the wrong pronouns for an employee, or refusing them access to bathrooms corresponding with their gender identity, constituted a form of harassment. That followed a 2020 Supreme Court ruling that gay, lesbian and transgender people are protected from employment discrimination.
Nearly all workplace discrimination charges must pass through the EEOC — at least initially — and the agency’s decision to drop at least six of the cases raises serious questions about whether its protections will continue to extend to transgender and gender nonconforming people going forward.
The EEOC is seeking to dismiss three cases in Illinois as well as one in Alabama, New York and California. In each instance, the original complaints allege discrimination against transgender or gender nonconforming workers. The agency cites Trump’s Jan. 20 executive order declaring that the government would recognize only two “immutable” sexes — male and female — as the reason for why it no longer intends to pursue the cases.
The Alabama case charged that Harmony Hospitality LLC discriminated against an employee who identifies as a gay nonbinary male by firing him hours after co-owners learned of his gender identity. The New York lawsuit alleged that Boxwood Hotels LLC fired a transgender housekeeper who complained that a supervisor repeatedly misgendered them and made anti-transgender statements, referring to the housekeeper as a “transformer” and “it.”
Another suit alleged that Wendy’s franchisee Starboard Group, Inc. subjected three transgender employees to pervasive sexual harassment at a Wendy’s restaurant in Carbondale, Illinois, claiming a supervisor demanded to know if one employee had a penis. In another Illinois case, a transgender Reggio’s Pizza cashier at Chicago O’Hare International Airport was “outed” by her manager, called a racist, homophobic slur by coworkers, and fired when she complained. In southern Illinois, at a hog farm called Sis-Bro, Inc., a coworker allegedly exposed his genitals to a transgender employee and touched her breasts.
And in Santa Clara, California, the EEOC charged that a Lush Handmade Cosmetics store manager sexually harassed three gender nonconforming employees with “offensive physical and verbal sexual conduct.”
Former EEOC General Counsel and Professor and Co-Dean Emeritus at Rutgers Law School David Lopez, who served in the agency for more than 20 years, on Friday said in his experience, the EEOC has never dismissed cases based on substance rather than merit — until now.
For the country’s anti-discrimination agency “to discriminate against a group, and say, ‘We’re not going to enforce the law on their behalf’ itself is discrimination, in my view,” Lopez said. “It’s like a complete abdication of responsibility.”
The EEOC’s requests to dismiss the cases come just weeks after Trump dismissed two Democratic commissioners of the five-member EEOC before their terms expired, an unprecedented decision that removed what would have been a major obstacle to his administration efforts to upend interpretation of the nation’s civil rights laws. Had the commissioners been allowed to carry out their terms, the EEOC would have had a Democratic majority well into Trump’s term. The administration also fired Karla Gilbride as the EEOC’s general counsel, replacing her with Andrew Rogers as acting counsel.
Shortly after their dismissals, acting EEOC chair Andrea Lucas, a Republican, signaled her intent to put the agency’s resources behind enforcing Trump’s executive order on gender. She announced in a statement that one of her priorities would be “defending the biological and binary reality of sex and related rights.” Later, she ordered that the EEOC would continue accepting any and all discrimination charges filed by workers, although complaints that “implicate” Trump’s order should be elevated to headquarters for “review.”
“Biology is not bigotry. Biological sex is real, and it matters,” Lucas said in her statement. “Sex is binary (male and female) and immutable. It is not harassment to acknowledge these truths — or to use language like pronouns that flow from these realities, even repeatedly.” She removed the agency’s “pronoun app,” which allowed employees to display their pronouns in their Microsoft 365 profiles, among other changes.
The EEOC in fiscal year 2023 received more than 3,000 charges alleging discrimination based on sexual orientation or gender identity, “the most since the agency started tracking these charges in FY 2013, and up more than 36% from the previous year,” according to the agency’s website, which also provides a link for more information on discrimination based on sexual orientation or gender identity. But the information appears to have been removed and the link now leads to a blank page with the message: “The requested page could not be found.”
Jocelyn Samuels, one of the Democratic EEOC commissioners who was fired last month, said via email that Trump’s executive order and the EEOC’s response to it “is truly regrettable.”
“The Administration’s efforts to erase trans people are deeply harmful to a vulnerable community and inconsistent with governing law,” she said.
Sarah Warbelow, vice president of legal at LGBTQ+ rights group Human Rights Campaign, added in an emailed statement: “This is the inevitable outcome when the EEOC is weaponized to greenlight discrimination against American workers.
“Instead of standing up for the rights of everyone to a workplace free from discrimination, including harassment and bias, the Trump administration is making it abundantly clear they will not protect working people.”