When issuing certain documents, the Commission acts by majority vote. Based on her existing authority, the Acting Chair cannot unilaterally remove or modify certain “gender identity”-related documents subject to the President’s directives in the executive order. Those documents include the Commission’s Enforcement Guidance on Harassment in the Workplace (issued by a 3-2 vote in 2024); the EEOC Strategic Plan 2022-2026 (issued by a 3-2 vote in 2023); and the EEOC Strategic Enforcement Plan Fiscal Years 2024-2028 (issued by a 3-2 vote in 2023).
Acting Chair Lucas voted against each of these documents. In particular, Acting Chair Lucas has been vocal in
her opposition to portions of EEOC’s harassment guidance that took the enforcement position that harassing conduct under Title VII includes “denial of access to a bathroom or other sex-segregated facility consistent with [an] individual’s gender identity;” and that harassing conduct includes “repeated and intentional use of a name or pronoun inconsistent with [an] individual’s known gender identity.”
Although Acting Chair Lucas currently cannot rescind portions of the agency’s harassment guidance that are inconsistent with Executive Order 14168, Acting Chair Lucas remains opposed to those portions of the guidance.
“Biology is not bigotry. Biological sex is real, and it matters,” Lucas said. “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.”
Lucas emphasized, “Because of biological realities, each sex has its own, unique privacy interests, and women have additional safety interests, that warrant certain single-sex facilities at work and other spaces outside the home. It is neither harassment nor discrimination for a business to draw distinctions between the sexes in providing single-sex bathrooms or other similar facilities which implicate these significant privacy and safety interests. And the Supreme Court’s decision in
Bostock v. Clayton County does not demand otherwise: the Court explicitly stated that it did ‘not purport to address bathrooms, locker rooms, or anything else of the kind.’”
Lucas contended that the EEOC betrayed its mission by issuing the “gender identity” portions of the Enforcement Guidance on Harassment in the Workplace: “The same agency that in the 1960s and 70s fought to ensure women had the right to their own restrooms, locker rooms, sleeping quarters, and other sex-specific workplace facilities—and established that it would be sex discrimination
not to provide such women-only facilities—betrayed women by attacking their sex-based rights in the workplace. That must end.”
“The Commission’s harassment guidance was fundamentally flawed,” said Lucas. “It ignored biological reality, effectively eliminated single-sex workplace facilities, and impinged on all employees’ rights to freedom of speech and belief. In unlawfully expanding past
Bostock’s dictates, the EEOC exceeded its authority. The EEOC must rescind the guidance and protect the sex-based privacy and safety needs of women.”
The EEOC is the sole federal agency authorized to investigate and litigate against businesses and other private employers for violations of federal laws prohibiting employment discrimination, including sexual harassment. For public employers, the EEOC shares jurisdiction with the Department of Justice’s Civil Rights Division; the EEOC is responsible for investigating charges against state and local government employers before referring them to DOJ for potential litigation. The EEOC also is responsible for coordinating the federal government’s employment antidiscrimination effort. More information about the EEOC is available at
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