SCOTUS order signals it may invalidate some EEOC harassment guidelines

In August, the U.S. Supreme Court upheld an injunction to the Department of Education’s recently issued rule implementing Title IX of the Education Amendments of 1972. Title IX prohibits sex-based discrimination in any school or any other education program that receives funding from the federal government. This order—coupled with its decision overruling Chevron deference—signals the Court may soon invalidate some of the Equal Employment Opportunity Commission’s (EEOC) harassment guidelines under Title VII of the Civil Rights Act of 1964 as they relate to sexual orientation and gender identity.

EEOC harassment guidelines

In late April 2024, the EEOC issued new guidelines explaining that discrimination based on sexual orientation or gender identity is a form of unlawful sex-based discrimination under Title VII, including epithets, physical assault, “outing” (disclosing an individual’s sexual orientation or gender identity without permission), or other harassing conduct toward individuals because they do “not present in a manner that would stereotypically be associated with that person’s sex.”

The guidelines state that the “repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity” may be considered illegal harassment under Title VII. 

Recent Supreme Court order on Title IX