EEOC to Process Some Transgender Cases After Early Rollback (1)

EEOC staff were instructed to continue processing some transgender workers’ bias charges, after previously halting work on these claims following a Trump administration directive to end gender identity protections government-wide.

The agency’s Director of the Office of Field Programs Thomas Colclough told Equal Employment Opportunity Commission employees on July 1 they were “in the clear to continue processing” charges that “fall squarely under” the US Supreme Court’s Bostock v. Clayton County ruling,according to a copy of the email reviewed by Bloomberg Law.

The direction lifts some of the roadblocks for transgender bias charges enacted under Republican Acting EEOC Chair Andrea Lucas. But charges will require a higher than standard level of commission review, and action is limited under the Trump administration’s reading of Bostock , which is narrower than the previous administration’s.

The Washington Post was first to report on Colclough’s email.

The agency had been effectively stalling transgender bias discrimination charges submitted by workers to the agency by instructing staff to code them with a “C,” a category typically used for charges with no merit, an EEOC staff member said.

The agency also successfully filed to dismiss multiple transgender bias cases in February that it had brought on behalf of employees during Joe Biden’s presidency.

If field staff find evidence that indicates a cause determination will be issued, they were instructed to send a copy of the charge to a senior attorney adviser who will then send it to the chair’s office to review before a letter of determination is issued, according to the email. This differs from the typical charge-processing protocol, which does not require additional oversight from the chair’s office.

The EEOC’s greenlight on processing transgender charges applies to employment issues such as hiring, discharge, or promotion, Colclough said in the email.

That appears to align with the view of conservative legal scholars and the Trump administration that Bostock did not interpret Title VII of the 1964 Civil Rights Act to extend to gender identity-based harassment or claims of biased conduct like misgendering or limiting workers’ access to facilities that match their gender identity.

President Donald Trump’s Jan. 20 executive order said the Biden administration misinterpreted the ruling to expand protections, and directed the EEOC to rescind its Biden-era harassment guidance.

Lucas said she would propose rescinding the guidance when she has a quorum of three commissioners to vote on it. The commission lacks a quorum after Trump fired two Democrats in January.

A federal judge in Texas vacated portions of the guidance that included LGBTQ+ workplace protections in May.

“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,” an EEOC spokesperson said on Thursday. “Where a charging party requests a notice of right to sue, the EEOC will issue that notice as required by statute.”