This article, written by attorney Brian Bouchard, was originally published by seacoastonline.com and can be found here.
The EEOC’s apparent pursuit to push back against DEI and what it calls “gender ideology” in the workplace has sown confusion for businesses, particularly in the Northeast. Some of its policy signals are vague and imprecise, while others run counter to state laws and a key US Supreme Court case regarding LGBTQ+ protections. Businesses are left walking a tightrope between following the EEOC’s lead and complying with state laws.
What Happened?
The confusion started in January when the EEOC announced plans to implement Executive Order 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” Among other moves, the EEOC announced it would stop allowing its employees to use their preferred pronouns in email systems, end the use of non-binary gender identifiers like “X” or “Mx” on its complaint intake forms, revise the required workplace poster, and remove resources related to “gender ideology” from its internal and external websites. Within hours of the January press release, the EEOC deactivated dozens of webpages discussing LGBTQ+ protections.
The EEOC further declared that gender is “biologically binary” and that recognizing this “scientific reality” is not discrimination under its interpretation of the law. By doing so, the EEOC sanctioned using only binary pronouns, regardless of individual preferences, and offering only single-sex facilities based strictly on assigned sex at birth. Without saying so explicitly, the EEOC strongly indicated that LGBTQ+ rights, while technically protected under Title VII, are second-tier or subservient to traditional views on gender or religious freedom.
The Roadblocks
Several roadblocks stand in the way of the EEOC’s new policy direction, but frankly, these roadblocks might further confuse businesses trying to respond responsibly.
First, because the Trump Administration fired (or attempted to fire) two appointed commissioners, the EEOC is currently quorumless. As a result, its director technically cannot rescind or modify the EEOC’s 2024 Enforcement Guidance on Harassment in the Workplace or the agency’s Strategic Enforcement Plans, both of which provide
for LGBTQ+ protections and accommodations. The former recognized that denying access to facilities consistent with one’s gender identity is harassment.
Second, and hugely important, the EEOC cannot reverse the U.S. Supreme Court’s landmark 2020 pronouncement in Bostock v. Clayton County. The Court made it clear: “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Because Title VII prohibits discrimination based on sex, it also prohibits discrimination based on LGBTQ+ traits.
Third, the EEOC cannot erase state laws. Maine, New Hampshire, and Massachusetts have all codified protections for sexual orientation and gender identity. Any employer in these states who discriminates on those bases faces legal trouble, irrespective of the EEOC’s latest signals. For example, existing New Hampshire law means employers and places of public accommodation generally cannot deny individuals access to facilities consistent with their gender identity. New Hampshire’s anti-discrimination law also likely protects an individual’s right to use their preferred pronouns in many workplace contexts.
The Tightrope Act
While the EEOC remakes federal policy, employers in Maine, New Hampshire, and Massachusetts are stuck walking a tightrope. On one side, they might worry about the EEOC aggressively targeting businesses that disregard the agency’s stance on “biological realities.” On the other side, businesses face pressure to comply with state laws and policies out of sync with the EEOC’s new initiatives.
Practical Steps for Businesses and HR
- Focus on Civility: Start from the perspective that real people are at the center of these issues. Promoting civil discourse and respectful communication can deescalate potential tension created by conflicting policies.
- Know Your State Law: Recognize that state laws still apply and cannot be unmade by the EEOC. Thus, while the EEOC might signal that Title VII does not require using preferred pronouns, your state or local law absolutely might.
- Think Facilities: Recognize that some facility-related friction created by these differing views can be eased by providing single-stall, unisex bathrooms. Any business renovating its space would be wise to consider installing these.
- Stay Updated: Remember that the situation is fluid. As the EEOC remains quorumless, its stance might remain opaque and untested for a while, feeding the confusion. As matters develop (through legal challenges or policy clarifications), the picture between the EEOC and state laws will become less blurry.
- Consult Your Employment Lawyer: Conflicts between different laws are nothing new. Think about the long-standing tensions between religious freedom claims and LGBTQ+ protections, where accommodating one side can sometimes feel like discriminating against the other. While the EEOC’s recent actions may amplify these conflicts, they are often manageable through careful planning, understanding the legal system, and good legal advice.
So, what’s the bottom line for you, the business owner? Stay alert to changes, but don’t panic. Ground your policies first in respecting your state’s laws and identify points tension between your state and the EEOC’s developing policies.