If you don’t recall the pivotal decision of the United States Supreme Court in Bostock v. Clayton County, here is a refresher. The case represented a historic civil rights ruling in which the Court found prohibitions against discrimination based on gender under Title VII of the Civil Rights Act protected LGBTQ Americans from discrimination at work based on sexual orientation and gender identity.
Gerald Bostock was a 10-year employee of Clayton County when he began participating in a gay softball league. Shortly thereafter he faced an internal audit and was terminated for conduct unbecoming. Bostock sued his employer for unlawful discrimination based on sex under Title VII. The circuit court held Title VII does not prohibit terminating an employee because they are gay.
The Supreme Court relied on the statute’s plain language barring discrimination based on “race, color, religion, sex, or national origin.” The Court determined that “sex” referred to biological gender and found that when “an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual because of sex,” in violation of Title VII.
In 2024, the EEOC relying in part on the Bostock decision, issued Enforcement Guidance on Harassment in the Workplace (“2024 Memo”), a comprehensive update of anti-discrimination law which included explanations and examples on gender identity, sexual orientation and reproductive rights.
On January 22, 2026, the EEOC voted to rescind the 2024 Memo in its entirety, effectively eliminating agency guidance on what constitutes gender identity-based harassment. While this aligns with EEOC’s current policy shift with respect to a binary interpretation of “sex” as set forth in Executive Order 14168 (January 20, 2025), what does it mean with respect to application of federal anti-discrimination law and the principles articulated in Bostock?
The rescission does not change the statutory language on which Bostock relied, or the holding that discrimination based on gender identity or sexual orientation is discrimination based on sex in violation of Title VII. Further, it does not change the language or enforcement of state or local laws that provide equal or greater protections. Even though the statutes and court interpretations remain intact, the removal of comprehensive guidance tends to create uncertainty in how the EEOC will interpret related issues, such as the use of pronouns and restroom access. However, bringing a claim to the EEOC is only a procedural requirement for filing a lawsuit under Title VII; it is not a requirement for the agency to find probable cause exists to show that discrimination occurred.
The bottom line? The legal framework of the statutory language has not changed because of a policy shift at the EEOC and employers should continue to follow compliance policies, procedures and training that align with Bostock, federal statutes and any more protective standards set forth in applicable state laws. If you or your organization have questions regarding your current antidiscrimination compliance, contact Wiley Reber Law for legal advice that works.