President Donald Trump (Washington Blade photo by Michael Key)
The U.S. Equal Employment Opportunity Commission (EEOC) and its acting chair, Andrea Lucas, were accused of failing to enforce protections for transgender workers in a lawsuit filed on July 29 by Democracy Forward and the National Women’s Law Center.
In their complaint, the groups argue that the EEOC’s non-enforcement policy denies complainants’ access to the investigative processes, dismisses active cases brought on their behalf, and blocks payments to state and local civil rights agencies.
The EEOC is responsible for reviewing discrimination complaints against private employers with 15 or more employees or, in the case of age discrimination allegations, private employers with 20 or more employees.
Should the EEOC move forward with a formal investigation and attempts at mediation or conciliation with the employer are unsuccessful, the agency may issue a notice of right to sue and in some cases will file a lawsuit on behalf of the complainant.
Per a press release from Democracy Forward announcing the action, the agency is accused of acting unlawfully under Title VII, the Fifth Amendment’s Equal Protection guarantee, the Administrative Procedure Act, and the Bostock v. Clayton County precedent, a 2020 case where the U.S. Supreme Court held that employment discrimination under federal law includes discrimination based on sexual orientation and gender identity, “confirming protections for LGBTQ+ workers that the EEOC had already recognized for nearly a decade.”
Specifically, according to the complaint, beginning in January the EEOC “halted the charge-investigation process for all charges tied to sexual orientation or gender identity,” then “moved to dismiss with prejudice its own employment discrimination lawsuits brought on behalf of transgender charging parties,” which “concerned transgender workers who had been subjected to egregious conditions in the workplace: slurs and grossly derogatory statements, graphic sexual comments and unwanted physical touching, misgendering, unfavorable shift changes, and termination after disclosing their gender identity—often in combination.”
Then, in April, “the EEOC directed that all charges of gender-identity discrimination be categorically classified as meritless and suitable for dismissal” and “now, the EEOC purports to accept for processing only certain kinds of charges brought by transgender charging parties—standalone hiring, firing, and promotion claims—but no others.”
Under the EEOC’s “Trans Exclusion Policy,” the groups write, the agency has abandoned its “statutorily mandated charge-investigation process” for “all other charges tied to gender-identity discrimination, including harassment and the many other adverse employment actions outside of hiring, firing, and promotion, as well as retaliation claims.”
As noted in their complaint, President Donald Trump removed Commissioners Charlotte Burrows and Jocelyn Samuels from the EEOC before the end of their terms, leaving only the acting chair and Commissioner Kalpana Kotagal.
In the press release, Democracy Forward included a statement from the organization’s President and CEO Skye Perryman:
“For over 60 years, the EEOC’s mandate has been to protect workers from discrimination, not to pick and choose who is deemed worthy of protection based on political interference. The Trump-Vance administration’s unlawful effort to erase protections for transgender people is cruel, and a violation of the law and the Constitution. We are honored to be alongside our partners and clients to hold this administration accountable and ensure every worker is protected under the law.”
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