Labor & Employment Law Daily Wrap Up, EEOC NEWS—Responding to Texas court decision, EEOC has ‘labeled and shaded the vacated portions of’ guidance, (May 21, 2025)

By Brandi O. Brown, J.D.

“[A]ny modification or recission must be approved by a majority vote of the Commission, and as of January 27, 2025, the EEOC lacks a quorum.”

Responding to a decision by a federal district court in Texas which found that the EEOC’s 2024 Enforcement Guidance on Harassment in the Workplace contravened Title VII by expanding the definition of “sex” and which vacated the gender-identity related portions of the guidance, the EEOC announced yesterday that it has updated its website to reflect where that decision impacts the guidance.

Shaded and labeled. Since the EEOC cannot rescind or modify the guidance at this time because it lacks a quorum, the announcement explains, in order to “assist the public following the federal court decision, the EEOC has labeled and shaded the vacated portions of the guidance on the agency’s website.” The modified guidance is available here.

Lucas was always against it. Acting EEOC Chair Andrea Lucas took the opportunity to remind readers that she voted against the guidance, noting that it had been issued by a 3-2 vote and that she had penned a separate dissent after the guidance was approved.

The announcement states:

• “In particular, Lucas has been vocal in her opposition to portions of EEOC’s harassment guidance that took the enforcement position that harassing conduct under Title VII includes ‘denial of access to a bathroom or other sex-segregated facility consistent with [an] individual’s gender identity;’ and that harassing conduct includes ‘repeated and intentional use of a name or pronoun inconsistent with [an] individual’s known gender identity.””

Elsewhere, regarding the vacated portions, it adds: “Acting Chair Lucas has made clear that she remains opposed to those portions of the guidance.”

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