Although the 2024 Guidance covered harassment based upon all protected characteristics, two notable examples of sexual harassment outlined in the 2024 Guidance that conflict with the Executive Order, and have now been rescinded, are:
1) the intentional misgendering of employees; and
2) the denial of restroom access based upon gender identity.
On Thursday, February 26, 2026, the EEOC ruled that federal employers may maintain single-sex bathrooms and may require transgender employees to use the restroom that aligns with their biological sex, rather than their gender identity.
In its decision, the EEOC defined “sex,” as used in Title VII, to mean “an individual’s immutable biological classification as either male or female.” The EEOC reasoned that men and women have innate physical differences and therefore are not similarly situated when it comes to using workplace bathrooms. The EEOC also explained that employees have a privacy interest in using workplace bathrooms outside the presence of the opposite sex. Because men and women are not similarly situated and have compelling privacy interests, the EEOC concluded that separating men and women in intimate workplace spaces, such as bathrooms, is not discriminatory under Title VII.
This decision reverses a 2015 EEOC decision that required federal employers to allow transgender employees access to the bathroom that matched their gender identity.
Importantly, the EEOC’s decision applies only to federal employers—it does not bind private employers or federal courts. However, the rescinded guidance and the decision sheds light on how the EEOC may allocate resources toward and process charges regarding transgender harassment and bathroom access in the private sector.
Regardless of the EEOC’s recent actions, employers should remember the following:
- Employers may still provide transgender employees with access to bathrooms that align with their gender identity. This decision does not affect how private employers choose to accommodate and include transgender employees in the workplace.
- Title VII still protects employees from harassment and discrimination based upon gender identity and sexual orientation, and employers should continue to be mindful of potential harassment based upon sexual orientation and gender identity.
