EEOC moves to dismiss transgender-discrimination lawsuits

"EEOC seeks to drop race discrimination cases brought on behalf of Black workers, citing Trump's executive order."

This is not a real headline.

But this is: "EEOC seeks to drop transgender discrimination cases, citing Trump's executive order."

How to respond to the Justice Department's DEI hitlist

"The Department of Justice's Civil Rights Division will investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector." 

 

That's the key sentence from a Feb. 5, 2025, memo that Attorney General Pam Bondi sent to all DOJ employees.

What does it mean? No one really knows. What we do know is that diversity, equity, inclusion, and accessibility are top priorities for this administration. The key question is how the administration defines "illegal."

Here's what we can infer so far:

What the EEOC just said—and didn't say—about the current state of workplace right

"The EEOC is open for business." That's what the agency just declared in a series of frequently asked questions about the impact of Trump's Executive Orders on its operations and the laws it enforces.

The FAQs acknowledge the agency's lack of a quorum and its resulting inability to issue or rescind guidance or policy statements. They also affirm that the EEOC continues to accept and process discrimination charges, conduct investigations, issue right-to-sue letters, and litigate cases.

What hiring and employment look like without DEI

What does a country without DEI look like? Some people say that's what they want. No more diversity, equity, and inclusion initiatives in hiring or the workplace. Just a pure "meritocracy."

So what does that actually look like?

Precedent used to mean something

"Supreme Court justices seldom get an opportunity to fix a botched decision. But as the Court takes up a transgender case, Associate Justice Neil Gorsuch has that chance."

 
Those are the words of The Heritage Foundation (author of Project 2025) in a recent blog post calling for SCOTUS to overturn Bostock's prohibition of transgender discrimination as sex discrimination under Title VII.

"But Jon," you protest, "precedent is sacred; SCOTUS is bound to follow its prior decisions. The Bostock case says that Title VII protects transgender employees from discrimination, period."

"Biological Women Only" = "Whites Only" = Discrimination

Can someone please explain the difference between labeling a women's restroom for "biological" women and labeling one for "white" women? Because I fail to see any difference between these two blatantly discriminatory scenarios.

Rep. Nancy Mace recently affixed the former label to a restroom in the Capitol and introduced legislation requiring people to use Capitol bathrooms that correspond to their sex assigned at birth.

When asked about her actions, Mace openly admitted that her intent was to target Rep.-elect Sarah McBride, the first openly transgender person elected to Congress. This kind of targeting is bigoted, unacceptable, and unlawful.

SCOTUS to weigh in on the burden of proof in "reverse" discrimination cases

The purpose of our workplace discrimination laws is to ensure that all employees are treated equally, right? Maybe … but maybe not.

Next term, the Supreme Court will hear the appeal of Marlean Ames, a straight woman who sued the Department of Youth Services for sex discrimination under Title VII. She claimed she was discriminated against her because of her sexual orientation, alleging that she was passed over for a promotion, demoted, and that a gay man was then promoted into her former position.

Ames claimed sex discrimination, but the 6th Circuit disagreed, citing her failure to establish the necessary "background circumstances."

What are the "background circumstances" needed to show that an employer is among the small subset that discriminates against the majority? According to the 6th Circuit, "Plaintiffs typically make that showing with evidence that a member of the relevant minority group (here, gay people) made the employment decision at issue, or with statistical evidence showing a pattern of discrimination by the employer against members of the majority group." Ames lost because she showed neither.

This is what allyship looks like

"Please know that there is a more than insignificant chance that a lesbian prepared your food last evening. A gay man might have mixed your drinks. A trans woman may have trained your server to give you such great service. A person who identifies with -- get this -- they/them pronouns may have sat you at your table."

That was just a part of the scathing comment the executive of The Original Vinnie's left on a customer's Google review, which used a gay slur to express his displeasure with the perceived sexual orientation of others in the restaurant during a recent visit.

It's illegal to deny coverage for gender-affirming care to a transgender employee simply because the employee is transgender

Can an employer-sponsored health plan legally deny coverage for gender-affirming care to a transgender employee simply because the employee is transgender?

According to the 11th Circuit Court of Appeals in Lange v. Houston Cty., the answer is an unequivocal "No, it cannot!"

Sexual harassment, bathroom, and pronouns

"Sex-based harassment includes harassment based on sexual orientation or gender identity, including … repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity … or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity."

That the official position of the EEOC in its just released, Enforcement Guidance on Harassment in the Workplace.

EEOC Commissioner Andrea Lucas disagrees. She voted against the final guidance. She believes that the bathroom guidance is an "assault on women's sex-based privacy and safety," and the pronoun guidance is an assault on "speech and belief rights."

“DEI” is not a 4-letter word

"DEI" is not a 4-letter word … no matter what some people want you to believe.

Companies such as Sherwin-Williams are scrapping their internal use of the words "Diversity," "Equity," and "Inclusion," and are replacing them with words such as "Belonging" and "Culture."

Whether you like it or not, it’s illegal to discriminate against transgender employees

“Do you have female parts?”

“You’re not a real man.”
“If I just say ‘she’, that’s what she is.”

Those are among the allegations that the EEOC made against T.C. Wheelers Bar & Pizzeria on behalf of Quinn Gambino, a transgender man the restaurant employed as a cook. Mr. Gambino complained to management about the harassment, but it continued unabated.

Denying gender-affirming health care to transgender employees is unlawful discrimination

Morgan Mesi, a transgender man, has just sued his former employer, Tenzing Wine & Spirits, along with his labor union and group health plan, claiming that they discriminated against him because of his sex by denying medical insurance coverage for gender-affirming care.

To me, Bostock v. Clayton Cty. clearly resolves this issue. In Bostock, SCOTUS held that Title VII's prohibition of sex discrimination also prohibits discrimination because of an employee's sexual orientation or gender identity. Indeed, Bostock could not have been clearer regarding the treatment of transgender employees: "[a]n individual's … transgender status is not relevant to employment decisions."

It’s illegal for gay people to discriminate against straight people … just not on these facts in this case

There is no such thing as "reverse" discrimination. Discrimination is discrimination, whether the victim is, for example, Black or white, female or male, gay or straight. When the employee claiming discrimination is in the majority, however, in the 6th Circuit they must not only show disparate treatment, but also must show "background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority."

Which brings us to the story of Marlean Ames, a straight woman who sued the Ohio Department of Youth Services for sex discrimination under Title VII claiming that her lesbian supervisor discriminated against her because of her sexual orientation. Ames claimed that OHYS passed her over for a promotion, demoted her, and promoted a gay man to her former position.

“Misgendering” is NOT a thought-crime

The EEOC is NOT trying to make "misgendering" a thought-crime.

The agency recently proposed new Enforcement Guidance on Harassment in the Workplace. Contained with that guidance is the EEOC's legally correct statement that the "intentional and repeated use of a name or pronoun inconsistent with the individual's gender identity" could create a hostile work environment constituting unlawful sexual harassment. That interpretation of Title VII by the EEOC is consistent with judicial opinions dating back nearly a decade.

In response, Andrea Picciotti-Bayer, Director of the Conscience Project, wrote an op-ed on thehill.com taking the EEOC to task for its alleged "thought-policing."

WIRTW #688: the “(not) Progressives” edition

Misgendering a transgender employee + forcing him to out himself to his coworkers + passing him over for a promotion + subjecting him to an unwanted office transfer + scrutinizing his medical appointments and other time off + ignoring his three HR complaints = a jury trial for Progressive Insurance on claims of sexual harassment, discrimination, and retaliation.

According to the plaintiff, the first four years of his employment at Progressive were without incident, until he informed his supervisor of his intent to transition from female to male. That's when he alleges the mistreatment began, and continued for the final four years of his employment until he quit.

Transgender people are under attack. This lawsuit is a symptom of a much larger problem in workplaces across our country. Trans employees often experience discrimination, harassment, and a lack of understanding, including from their work colleagues and bosses. As an employer, it is important to create a safe and inclusive environment for all employees, including those who identify as transgender or gender nonconforming. Otherwise, you just might find yourself at a receiving end of a well-deserved and difficult-to-defend lawsuit. Just ask Progressive Insurance.

The case is John Doe v. Progressive Ins., and you can find the court's summary judgment opinion here.

$2.6 million reasons why it’s illegal to fire a gay employee

Yesterday, a federal jury in Columbus returned a $2.6 million verdict in favor of Stacey Yerkes, a former Ohio State Highway Patrol employee who claimed that she was constructively discharged (forced to quit based on intolerable and unreasonable working conditions) because of her sexual orientation.

Color me unsurprised that businesses are already using 303 Creative to discriminate

If a human identifies as anything other than a man/woman, please seek services at a local pet groomer. You are not welcome at this salon. Period.

Those are the words of Christine Geiger, the owner of Studio 8 Hair Lab, in a post on the business's now-deleted Facebook page. In a still-available comment on another Facebook page, Geiger says, "I have no issues with LGB. It’s the TQ+ that I'm not going to support. For those that don't know what the + is for, it's for MAP (Minor Attracted Person aka: pedophile)." Meanwhile, the business's private Instagram page describes itself as, "A private CONSERVATIVE business that does not cater to woke ideologies." 

We get the point. Geiger doesn't like transgender people and is using her religion and the Supreme Court's decision in 303 Creative v. Elenis to justify her discrimination.

10 ways to support your LGBTQ employees #pride

Today is the first day of Pride Month. June might be Pride Month, but your business should commit to and support its LGBTQ employees 24/7/365. Here are 10 ideas that incorporate this inclusion and demonstrate your support of your LGBTQ workers.

Uber suspends DEI exec over “Don’t Call Me Karen” events

Uber has suspended its longtime head of diversity, equity, and inclusion, Bo Young Lee, after Black and Hispanic employees complained that an event she ran — titled "Don't Call Me Karen" — was insensitive to people of color.

"Karen," in case you've lived an a cave without WiFi for the past half-decade, is slang for an entitled white woman who often complains to a management and the authorities about Black people and other minorities.