Dive Brief:
- Citing President Trump’s executive order on gender and sex, U.S. Equal Employment Opportunity Commission Acting Chair Andrea Lucas announced her intention to refocus the agency on “protecting women from sexual harassment and sex-based discrimination in the workplace by rolling back the Biden administration’s gender identity agenda” in a Tuesday statement from the agency.
- In her short tenure as acting chair, Lucas has announced she will prioritize defending “the biological and binary reality of sex and related rights,” removed the agency’s “pronoun app,” removed “X” and “Mx.” gender markers from agency charge forms, begun a review of EEOC’s “Know Your Rights” poster and removed “materials promoting gender ideology” from the agency’s internal and external websites.
- She also expressed her opposition to the agency’s anti-harassment guidance, which is currently in limbo following a lawsuit filed by 18 states and an apparent abandonment of defense by the U.S. Department of Justice, EEOC’s counsel. “The EEOC must rescind the guidance and protect the sex-based privacy and safety needs of women,” Lucas said.
Dive Insight:
As acting chair of the commission, Lucas cannot unilaterally rescind the anti-harassment guidance — a reality EEOC acknowledged in its news release. A note at the top of the webpage for the guidance explains that any modification to it must be approved by a majority of the commission.
However, following an unprecedented purge of most Democratic Commissioners as well as EEOC’s general counsel early this week, an eventual modification or scrapping of the document appears likely. Currently, only Lucas and Democrat Commissioner Kalpana Kotagal remain on the Commission, with three empty seats waiting to be filled.
While Title VII of the Civil Rights Act of 1964 stipulates that of the five members of the EEOC, “not more than three [...] shall be members of the same political party,” President Trump will presumably nominate at least two Republicans, changing the composition of the Commission and paving the way to center Lucas’ stated priorities.
In addition to the anti-harassment guidance, EEOC pointed to the 2022-2026 Strategic Plan and the FY 2024 Strategic Enforcement Plan as documents it will target for modification or removal due to their inclusion of language pertaining to gender identity.
Lucas voted against the anti-harassment guidance last year, taking particular issue with its position that denying a person access to a bathroom or other sex-segregated facility consistent with their gender identity and repeatedly or intentionally using a pronoun inconsistent with an individual’s stated gender identity both constitute harassment.
“Because of biological realities, each sex has its own, unique privacy interests, and women have additional safety interests, that warrant certain single-sex facilities at work and other spaces outside the home,” Lucas said. “It is neither harassment nor discrimination for a business to draw distinctions between the sexes in providing single-sex bathrooms or other similar facilities which implicate these significant privacy and safety interests.”
Lucas noted that Bostock v. Clayton County, the case that established the illegality of discrimination based on sexual orientation and gender identity, explicitly did “not purport to address bathrooms, locker rooms, or anything else of the kind.”
