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The U.S. Equal Employment Opportunity Commission, the federal agency responsible for enforcing laws against workplace discrimination, will allow some complaints by transgender workers to proceed, a change from earlier guidance that indefinitely halted cases alleging workplace discrimination against transgender people.
An email was sent earlier this month to leaders of the EEOC in which Thomas Colclough, director of the agency’s Office of Field Programs, said if new transgender worker complaints involve “hiring, discharge or promotion, you are clear to continue processing these charges.”
Even with the change, those complaints will still face higher scrutiny than other workplace discrimination cases, requiring approval from acting EEOC chair Andrea Lucas, who was appointed by President Donald Trump earlier this year.
Lucas has said one of her priorities would be “defending the biological and binary reality of sex and related rights.”
Since Trump returned to the presidency in January, the EEOC has shifted away from its previous interpretation of civil rights law that included prohibiting workplace discrimination against people based on their gender identity.
This comes after the agency issued a landmark finding a decade ago that a transgender civilian employee of the U.S. Army had faced discrimination when her employer refused to use the worker’s preferred pronouns or allow the individual to use bathrooms based on gender identity rather than biological sex.
Under Lucas’ authority, the EEOC has dropped several lawsuits alleging discrimination against transgender workers. Lucas defended that decision during her Senate committee confirmation hearing last month, citing Trump’s executive order stating that there are only two sexes — male and female.
But she also acknowledged that the 2020 Supreme Court ruling Bostock v. Clayton County “did clearly hold that discriminating against someone on the basis of sex included firing an individual who is transgender or based on their sexual orientation.”
Colclough said in his email that the EEOC will consider transgender discrimination complaints that “fall squarely under” the Supreme Court’s ruling, including cases involving hiring, firing and promotion, which reversed an earlier policy that de-prioritized cases filed on behalf of transgender workers.
“Under federal law, charge inquiries and charges of discrimination made to the EEOC are confidential,” an EEOC spokesperson told The Associated Press, while declining to comment on the specifics of its updated policy.
“Pursuant to Title VII and as statutorily required, the EEOC is, has been, and will continue to accept and investigate charges on all bases protected by law, and to serve those charges to the relevant employer,” the spokesperson added.
But even the cases the EEOC will consider under the Supreme Court ruling must still be reviewed by a senior attorney advisor and sent to Lucas for final approval.
The expanded review process for transgender cases is not typical of other discrimination complaints and reflects the agency’s increased scrutiny of these cases, according to former EEOC commissioner Chai Feldblum, who was appointed by former President Barack Obama.
“It is a slight improvement because it will allow certain claims of discrimination to proceed,” Feldblum told The Associated Press. “But overall it does not fix a horrific and legally improper situation currently occurring at the EEOC.”
Colclough’s email did not clarify how long the review process might take, or whether cases that include additional claims, such as harassment or retaliation, would be eligible to proceed, and the EEOC declined to address those questions.
“This is not the EEOC being clear to either its own staff or to the public what charges are going to be processed,” Feldblum said. “This is not a panacea.”
The Associated Press contributed to this report.
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