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EEOC Flips on Gender Identity Protections: What’s Changed in 2025-2026

Equal Pay and Anti-Retaliation Protection Act protects from retaliation.

EEOC Retreats on Gender Identity Protections: What Workers Need to Know

The EEOC moved to dismiss its own gender identity harassment & discrimination lawsuit against Harmony Hospitality LLC in February 2025, citing conflict with President Trump’s executive order recognizing only two sexes. The reversal, paired with leadership upheaval and a new enforcement focus on religious accommodation, signals that employees facing gender identity harassment & discrimination may need to look beyond the EEOC—to state agencies and private attorneys—to protect their rights.

Eight months after suing Harmony Hospitality LLC on behalf of a fired employee, the Equal Employment Opportunity Commission did something almost unheard of: it asked a court to let the company off the hook. The EEOC’s own lawsuit, abandoned mid-fight, now sits as the clearest signal yet that gender identity harassment & discrimination protections are being reshaped at the federal level—and fast.

For millions of American workers, that shift matters enormously. The EEOC serves as the gatekeeper for nearly every workplace discrimination charge filed in the United States. When its enforcement priorities pivot, the ripple effects reach into every industry and every state.

This post walks through the Harmony Hospitality reversal, the leadership shakeup driving the EEOC’s new posture, the parallel fight unfolding over diversity and inclusion policy, and the agency’s growing focus on religious accommodation claims. It closes with what all of this means for employees who believe they’ve been harassed or discriminated against at work. Even as federal protections shift, employees still have options—including state law claims and private legal counsel—to pursue justice.

What happened in the EEOC’s Harmony Hospitality reversal?

The Harmony Hospitality case started as a straightforward Title VII claim. A night auditor at a Home2 Suites by Hilton hotel in Dothan, Alabama, “styled himself in conformity with male gender stereotypes” during his normal shifts. But when he arrived at an off-hours meeting wearing capri-cut joggers, pink-painted nails, and box braids, the hotel’s co-owner reportedly said the employee needed to be “hidden.” Seven hours later, he was fired by text message, according to the EEOC’s original complaint.

The agency’s lawsuit alleged Harmony Hospitality violated Title VII of the Civil Rights Act of 1964 by firing the employee “because of his sex, sexual orientation, gender identity, and failure to adhere to male gender stereotypes.” Harmony Hospitality has denied the allegations, stating in court filings that the employee was “separated from employment” for “reasonable, legitimate factors” unrelated to gender.

In February 2025, the EEOC filed a joint motion to dismiss its own case, citing compliance guidance from the Office of Personnel Management implementing President Trump’s executive order, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” The agency’s motion stated plainly: “The EEOC’s continued litigation of the claims in this action may be inconsistent with the Order and the OPM Guidance,” according to NPR’s reporting on the case.

Former EEOC General Counsel David Lopez, who spent more than 20 years at the agency, called the dismissal “unprecedented” and “discriminatory.” As he told the Associated Press, an anti-discrimination agency that refuses to enforce the law on behalf of a protected group is, in his words, essentially discriminating itself—”a complete abdication of responsibility.”

The reversal is especially striking given the EEOC’s own recent history. Just months before the Harmony Hospitality dismissal, the agency’s 2024 guidance classified deliberate misgendering and bathroom-access denial as unlawful harassment, building directly on the Supreme Court’s 2020 ruling extending Title VII protections to LGBTQ+ workers.

Why did EEOC leadership change so dramatically in 2025?

The Harmony Hospitality reversal didn’t happen in a vacuum. Weeks earlier, President Trump removed two Democratic commissioners from the five-member EEOC before their terms expired—an unprecedented move that eliminated what would have been a Democratic majority well into his term. The administration also fired General Counsel Karla Gilbride, replacing her with Acting General Counsel Andrew Rogers.

Acting Chair Andrea Lucas moved quickly to redefine the agency’s priorities. She announced her intent to focus EEOC resources on “defending the biological and binary reality of sex and related rights.” Lucas removed the agency’s internal pronoun app and directed that any complaint implicating Trump’s executive order be elevated to headquarters for review.

“Biology is not bigotry. Biological sex is real, and it matters,” Lucas said in a public statement, according to NPR. “Sex is binary (male and female) and immutable. It is not harassment to acknowledge these truths—or to use language like pronouns that flow from these realities, even repeatedly.”

The response from civil rights advocates was swift. Sarah Warbelow, vice president of legal at the Human Rights Campaign, called the agency “weaponized to greenlight discrimination against American workers.” Jocelyn Samuels, one of the fired Democratic commissioners, called the Harmony Hospitality decision “truly regrettable” and said she hoped the EEOC would help affected workers find private counsel to vindicate their rights.

How does the EEOC’s lawsuit against The New York Times fit into this shift?

The EEOC’s retreat from gender identity protections has unfolded alongside an aggressive new enforcement push against diversity, equity, and inclusion practices—illustrated most dramatically by its lawsuit against The New York Times.

The agency sued the Times in May 2026, alleging the company violated Title VII by passing over Bryant Rousseau, a white male senior staff editor, for a Real Estate Deputy Editor role in favor of a non-white woman the EEOC claimed had less relevant experience. Chair Lucas has acknowledged this was “the very first lawsuit in ten years that the agency brought on behalf of a white male.”

The Times fired back with sweeping counterclaims in July 2026. The paper argues the suit is retaliation for its reporting that EEOC staff were under pressure to bring cases fitting “the Trump administration’s priorities” even with “little evidence” behind them—filed just eight days after that reporting published. The Times also contends the EEOC violated due process by prosecuting diversity practices it had encouraged for decades, and that the agency terminated conciliation in under two hours in a manner that was “arbitrary and capricious” under the Administrative Procedure Act.

Even EEOC Commissioner Kalpana Kotagal, who voted against authorizing the litigation, said publicly that she feared “this litigation is driven not by the merits, but by a desire to advance the administration’s political agenda.” A federal court has since paused discovery on the Times’ retaliation claim while the EEOC’s motion to dismiss remains pending—leaving this high-stakes legal terrain far from settled.

Equity, inclusion, and diversity initiatives that were standard practice under prior EEOC guidance are now, under the current leadership, a potential source of liability. That whiplash leaves employers and employees alike navigating genuinely uncharted territory.

What is the EEOC’s new approach to religious discrimination claims?

While the EEOC has pulled back from gender identity enforcement, it has sharply ramped up religious accommodation enforcement—creating direct tension between the two priorities.

In a September 2026 settlement, the EEOC found that Generac Power Systems failed to properly engage in the interactive process after a religious employee requested to use biological-sex pronouns when referring to a transgender coworker. The failure led to the religious employee’s resignation. Generac agreed to pay monetary relief and update its religious accommodation policies.

“Title VII requires employers to engage with religious accommodation requests, and that obligation does not disappear when the request involves a religious employee’s sincerely held belief in the binary nature of sex,” Chair Lucas said in announcing the settlement.

Reasonable accommodation, in this context, means an employer must make good-faith adjustments—such as schedule changes, dress policy exceptions, or alternative duties—that let an employee practice their sincerely held religious beliefs, unless doing so would create undue hardship for the business. Since January 2025, the EEOC has taken more than 40 public actions defending religious liberty, a clear indicator of where its enforcement resources are now concentrated.

For employers, this creates a genuine balancing act: fulfilling religious accommodation obligations while maintaining inclusive workplace policies, especially when the two interests appear to pull in opposite directions.

What can employees do if the EEOC won’t pursue their discrimination claim?

Federal enforcement may be retreating on gender identity harassment & discrimination, but employees are not without recourse. State laws—particularly in jurisdictions like California—often provide stronger protections than federal law.

California’s Fair Employment and Housing Act (FEHA), for example, requires only that harassing conduct be severe or pervasive, not both, a notably lower bar than the federal standard. FEHA also explicitly protects gender identity and gender expression, extends filing deadlines to three years (compared to the federal government’s 180- or 300-day windows), and allows individual supervisors—not just employers—to be held personally liable for harassment.

Employees who believe they’ve experienced gender identity harassment & discrimination, retaliation, or religious discrimination still have paths forward even when the EEOC declines to pursue a charge. That might mean filing with a state civil rights agency like California’s Civil Rights Department, or pursuing a private lawsuit through experienced employment counsel.

Documentation matters regardless of which agency or court ultimately hears a claim. Dates, witnesses, written complaints, and preserved communications—texts, emails, internal messages—build the foundation of any successful case. Keep this evidence on a personal device, not a work computer, and consult an attorney before taking further steps, including before using any AI chatbot to discuss your situation, since those conversations are generally discoverable by the opposing side.

Navigating this shifting landscape requires counsel who tracks EEOC policy changes in real time and understands how to pursue claims through alternative channels when federal enforcement falls short.

Protecting Your Rights in an Uncertain Enforcement Landscape

The throughline connecting the Harmony Hospitality dismissal, the EEOC’s leadership overhaul, its DEI-related lawsuit against The New York Times, and its intensified religious accommodation enforcement is unmistakable: federal workplace protections are undergoing a fundamental realignment. What counted as unlawful harassment under Title VII eighteen months ago may not be enforced the same way today.

But uncertainty at the federal level does not mean employees are left defenseless. State protections remain robust, and private legal representation remains a powerful tool for holding employers accountable—regardless of which direction federal policy swings next.

If you believe you’ve experienced discrimination, harassment, or retaliation tied to gender identity, religion, or any other protected status, don’t wait to find out whether the EEOC will take up your case. Contact Helmer Friedman LLP for a free, confidential consultation to discuss your specific situation and explore every available avenue for justice.

Frequently Asked Questions

What should I do if the EEOC dismisses my discrimination case?
A dismissal by the EEOC does not end your legal options. You may still be able to pursue a claim through your state’s civil rights agency or file a private lawsuit with the help of an employment attorney, particularly in states like California where FEHA offers broader protections and longer filing deadlines than federal law.

Can I still sue for discrimination if the EEOC won’t take my case?
Yes. In most instances, you can request a Right-to-Sue notice from the EEOC, or pursue your claim under state law, which may offer a lower burden of proof and a longer statute of limitations. An experienced employment attorney can evaluate which path offers the strongest protection for your specific circumstances.

What is a hostile work environment under federal versus California law?
Federal law requires conduct to be severe or pervasive enough that a reasonable person would find the workplace intimidating or abusive. California’s FEHA sets a lower bar, requiring conduct to be severe or pervasive—not both—and applies a “reasonable victim” standard rather than a generic “reasonable person” standard.

Does the EEOC’s shift away from gender identity enforcement affect state law protections?
No. State laws operate independently of federal enforcement priorities. California, for instance, explicitly protects gender identity and gender expression under FEHA regardless of how the EEOC chooses to interpret or enforce Title VII at the federal level.

What is a religious accommodation request, and how does it relate to these cases?
A religious accommodation request asks an employer to adjust a policy or practice—such as dress codes, scheduling, or language use—to respect an employee’s sincerely held religious beliefs, unless doing so creates undue hardship for the business. The EEOC’s Generac settlement shows this obligation applies even when the accommodation request touches on contentious topics like gender identity.

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SCOTUS Holds NLRA Does Not Preempt An Employer’s Tort Claims Alleging Union Intentionally Destroyed Property

Unions - collective bargaining, class actions.

Supreme Court Holds That NLRA Does Not Preempt An Employer’s Tort Claims Alleging That The Union Intentionally Destroyed The Company’s Property During A Labor Dispute

Glacier Northwest, Inc., v. International Brotherhood of Teamsters Local Union No. 174, 2023 WL 3742578 (2023)

Glacier Northwest, a concrete company, depends on its truck drivers to deliver concrete to customers in a timely manner. But when relations between Glacier and its drivers soured, the drivers went on strike. Their labor union allegedly designed the strike with the intent to sabotage Glacier’s property. Although Glacier managed to avoid damage to its delivery trucks by deploying emergency maneuvers, the concrete that it had already produced that day went to waste. Glacier sued the union in state court for destroying its property. But the company did not get very far: The state court dismissed Glacier’s tort claims on the ground that they were preempted by the National Labor Relations Act. In an 8 – 1 opinion authored by Justice Barret, the Supreme Court reversed its holding in favor of the Glacier Northwest because the NLRA does not shield strikers who fail to take “reasonable precautions” to protect their employer’s property from foreseeable, aggravated, and imminent danger due to the sudden cessation of work and, in the opinion of the majority, the Union failed to “take reasonable precautions to protect” against this foreseeable and imminent danger.

Justice Thomas, with whom Justice Gorsuch joined, concurred in the decision but suggested that it was time to overrule San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959).

Justice Jackson issued a withering dissent:

The right to strike is fundamental to American labor law. Congress enshrined that right in the National Labor Relations Act (NLRA) and simultaneously established the National Labor Relations Board to adjudicate disputes that arise between workers and management. That decision reflected Congress’s judgment that an agency with specialized expertise should develop and enforce national labor law in a uniform manner through case-by-case adjudication. For its part, this Court has scrupulously guarded the Board’s authority for more than half a century. See San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959). Under Garmon, and as relevant here, a court presented with a tort suit based on strike conduct generally must pause proceedings and permit the Board to determine in the first instance whether the union’s conduct is lawful if the conduct at issue is even “arguably” protected by the NLRA.

Today, the Court falters. As the majority acknowledges, the Board’s General Counsel has filed a complaint with the Board after a thorough factual investigation, and that complaint alleges that the NLRA protects the strike conduct at the center of this state-court tort suit. The logical implication of a General Counsel complaint under Garmon is that the union’s conduct is at least arguably protected by the NLRA. Consequently, where (as here) there is a General Counsel complaint pending before the Board, courts—including this Court—should suspend their examination. Garmon makes clear that we have no business delving into this particular labor dispute at this time.

But instead of modestly standing down, the majority eagerly inserts itself into this conflict, proceeding to opine on the propriety of the union’s strike activity based on the facts alleged in the employer’s state-court complaint. As part of this mistaken expedition, the majority tries its own hand at applying the Board’s decisions to a relatively novel scenario that poses difficult line-drawing questions—fact-sensitive issues that Congress plainly intended for the Board to address after an investigation. And in the course of inappropriately weighing in on the merits of those questions at this stage, the majority also misapplies the Board’s cases in a manner that threatens to both impede the Board’s uniform development of labor law and erode the right to strike.

In my view, today’s misguided foray underscores the wisdom of Congress’s decision to create an agency that is uniquely positioned to evaluate the facts and apply the law in cases such as this one. This case is Exhibit A as to why the Board—and not the courts—should ordinarily take the first crack at resolving contentious, fact-bound labor disputes of this nature. Because the majority’s ruling suggests otherwise, I respectfully dissent.

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Whistleblower Case: First Federal Supreme Court Broad Reaching

Robert MacLean, a former air marshal, was fired because of his federal whistleblower actions. (Courtesy of House Committee on Oversight and Government Reform)

Robert MacLean didn’t realize that by trying to protect America’s flying public, his employer — his government — would treat him almost like a traitor.

Soon, the Supreme Court will have a chance to decide if MacLean, a whistleblower and former air marshal, was treated justly, or at least legally. It is the first case the high court will hear directly concerning a federal whistleblower.

The implications of the case go well beyond MacLean. If he loses, Uncle Sam will have greater power to bully whistleblowers. Fewer federal employees might be willing to disclose waste, fraud, abuse and dumb decisions.

Oral arguments are scheduled for Nov. 4. The Obama administration is appealing a lower court decision that MacLean’s disclosures were covered by the Whistleblower Protection Act. If the justices rule against MacLean, federal agencies could have broad power to weaken that law by using the government’s power to make secret more information than Congress intended.

Here is MacLean’s story:
In July 2003, air marshals, including MacLean, were summoned for mandatory training to prevent suicidal airline hijacking plots by al-Qaeda. Days later, the Transportation Security Administration sent an unsecured, unclassified text message to air marshals informing them that all long-distance assignments requiring an overnight stay would be canceled.

Knowing that could hamper efforts to thwart hijackers, MacLean said he complained about this shortsighted, money-saving plan to an agency supervisor and to the Department of Homeland Security’s inspector general’s office. MacLean also leaked information to MSNBC, which he admitted to during a leak investigation two years later. He was placed on administrative leave in September 2005 and fired in April 2006.

This is the incredible part: It wasn’t until August 2006 that the government retroactively labeled as sensitive the information MacLean was fired for leaking — three years after the text message was sent.

The question before the court: Was MacLean’s disclosure “specifically prohibited by law?”

DHS and the Justice Department say it was
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But noteworthy to MacLean’s defense is thata key bipartisan group of members of Congress say his disclosures are, or at least should have been, protected from agency reprisal by the whistleblower law.

They should know
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The administration argues that “by law” includes statutes and “substantive regulations that have the force and effect of law.”

The lower court’s decision “is wrong, dangerous, and warrants reversal,” say the government’s lawyers. The earlier ruling “imperils public safety,” they added, “by dramatically reducing the effectiveness of Congress’s scheme for keeping sensitive security information from falling into the wrong hands.”

But members of Congress who were instrumental in passing the legislation say that’s not so. In fact, “Congress deliberately crafted” legislation “to exclude agency rules and regulations,” says a brief filed by Sens. Charles E. Grassley (R-Iowa), Ron Wyden (D-Ore.), Reps. Darrell Issa (R-Calif.), Elijah E. Cummings (D-Md.), Blake Farenthold (R-Tex.) and Stephen F. Lynch (D-Mass).

“If agencies could decide which disclosures receive whistleblower protections, they would inevitably abuse that power,” the members said. “The result would be to deter whistleblowers and restrict the flow of information to Congress.”

Sadly, the message here is that agency officials can’t always be trusted to do the right thing. When employees expose bad policies, too often the reaction of their bosses is to cover managerial behinds. Whistleblowers should be congratulated, praised for serving the public. Instead, many are harassed, punished and pushed from government service.

“After all,” said a brief filed by the U.S. Office of Special Counsel, “whistleblower protection laws exist because government officials do not always act in the nation’s best interests.”

Agencies can be creative in their reprisals, even belatedly declaring information sensitive, as TSA did, in order to better take revenge against whistleblowers.

“[I]n fear that such retroactive designations are possible, whistleblowers may refrain from alerting the public to dangers that could have been averted or mitigated,” said the brief by OSC, which works to protect whistleblowers. This is the first Supreme Court friend-of-the-court brief filed by OSC.

This wariness of the way agency managers treat whistleblowers is shared by the Republicans and Democrats who filed the congressional brief.

“Time and time again,” they said, “agencies have found ways to suppress inconvenient information.” An administration victory over MacLean, the elected officials warned, “will deter untold numbers of whistleblowers.”

If that happens, it’s not only MacLean who will lose. The American people will, too.

By Joe Davidson October 9, 2014