Mother Jones illustration; Aaron Schwartz/CNP/Zuma
The Equal Employment Opportunity Commission (EEOC) has begun filing motions to dismiss court cases the agency brought against businesses accused of discriminating against transgender and nonbinary employees.
Federal court records show the EEOC filed to dismiss four cases related to gender identity late this week. Multiple EEOC workers, who spoke to Mother Jones on the condition of anonymity, say agency staff have been instructed not to investigate current or future complaints regarding gender identity.
There are at least seven EEOC cases about gender identity and sexual orientation discrimination pending in the federal court system. The EEOC received more than 3,000 charges alleging discrimination based on sexual orientation or gender identity in fiscal year 2023, the most recent year for which data is available.
On Friday, the EEOC asked a judge in the Western District of New York to dismiss a case in which a claimant said they were described as an “it” and called a “transformer” by their manager at a Holiday Inn Express. The employee reported the alleged harassment, but were told by hotel management they weren’t a “good fit” for the housekeeping role, and subsequently received notice that their employment was terminated, the original complaint said. The motion to dismiss indicates “recent Administration policy changes” as reasoning.
The EEOC also sought dismissal on Friday of a lawsuit in which a group of transgender Wendy’s employees claimed they were on the receiving end of “pervasive sexual harassment including repeatedly subjecting the transgender employees to misgendering, graphic sexual comments, unequal access to bathrooms, intrusive questions, and degrading conduct based on gender identity.” Subsequently, some of the transgender employees reported seeing their hours reduced or were terminated.
In a third case—regarding a Lush cosmetics store manager allegedly telling a transgender employee he wanted to have sex with a trans person, and texting a nonbinary employee about sexual acts—the EEOC filed a stipulation to dismiss on Friday. Lush had failed to adequately investigate the harassment, the original EEOC complaint said, causing at least two employees to quit.
On Thursday, the EEOC asked a judge in Alabama to dismiss a discrimination case in which a nonbinary individual alleged they were fired from a Home2 Suites hotel for not conforming to male gender stereotypes. After seeing the employee with pink nail polish and capri pants, a manager wanted the employee “hidden” due to their appearance, the complaint said. Shortly after, the employee was terminated. The motion cites President Donald Trump’s executive order on “Gender Ideology Extremism” as a basis.
A remaining case, in which a motion to dismiss has not yet been filed, regards a transgender employee at a Culver’s restaurant in Michigan who alleged he was purposely misgendered, dead-named, and asked whether he had undergone gender-reassignment surgery. After the employee reported the harassment, he was fired.
While in alignment with President Donald Trump’s executive order on “gender ideology extremism,” the motions to dismiss are at odds with a recent Supreme Court decision authored by Neil Gorsuch, a Trump appointee. In the 2020 case, Bostock v. Clayton County, a 6-3 majority concluded that firing an employee based on their sexuality or gender identity was a violation of existing sex-based discrimination protections in Title VII of the 1964 Civil Rights Act.
“If someone says, ‘I’m not going to hire you because you’re gay,’ or ‘I’m not going to hire you because you’re a transgender individual’—that’s unlawful now and the Supreme Court held it,” says Brian Wolfman, a Georgetown University Law Center professor who won a sex-based employment discrimination case in front of the Supreme Court last year.
But even if a court eventually overrules Trump’s executive order on “gender ideology,” the individuals who filed EEOC complaints based on claims related to their gender identity may not be able to seek future recourse: Dismissals with prejudice are final judgements. Theoretically, a judge could refuse to grant the motions to dismiss, or personal attorneys for the plaintiffs may be able to intervene and represent clients in the EEOC’s absence. But the former scenario isn’t regularly seen, and the latter is likely unfeasible for vulnerable claimants who lack funds to hire private counsel.
“To go through with what was likely a multi-year investigation, and then to finally feel safe that the EEOC is going to file the case, and vindicate your rights, and then to just get the rug pulled out from under you—it’s fucking awful,” says an EEOC staffer who asked to remain anonymous to avoid career repercussions.
The motions to dismiss follow earlier instructions from the commission, now led by Trump-appointed Acting Chair Andrea Lucas, to pause investigations into new and existing complaints based on charges of discrimination involving sexual orientation and gender identity.
Employees are scared of what the administration will change next at EEOC. “As a federal employee, this has definitely caused me a lot of sleepless nights,” one EEOC staffer says. “I wake up every morning, and think, ‘What the fuck is it gonna be today?’”
“We’re here trying to help people who have been discriminated against and disadvantaged,” affirms another EEOC employee. The new administration’s guidance to dismiss litigations based on a claimant’s transgender status “is discriminatory and directly violates the agency’s core mission.”
