Dallas Employment Lawyer Blog
Dallas Employment Trial Lawyer Rob Wiley
On May 15, 2025 a conservative judge struck down federal guidance protecting gay and transgender employees from discrimination and harassment in the workplace. This is not normal or business as usual, this is a sledgehammer-style legal assault on our community. Judge Matthew J. Kacsmaryk’s opinion undoes decades of progress, declaring it legal to harass and bully workers who happen to be gay or trans. As a gay employment lawyer, I want to address what this means for us.
Employment discrimination against gay and trans people is real. We all have to have a job, and it’s all too common to have a co-worker or manager who resents having to work with someone who is gay or trans. That’s why this decision hits hard, it’s going to have a real impact on real life.
So, what happened and how did we get here? In 2020 the Supreme Court ruled that discrimination against gay and trans employees is discrimination because of sex, and therefore illegal under Title VII of the Civil Rights Act of 1964. The case is called Bostock v. Clayton County, it’s worth the google to read about it.
There, the Supreme Court ruled, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” It concluded that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
With those words gay and trans employees won the right to equal treatment in the workplace. It was a huge victory for our community, even more so because it was a 6-3 decision written by none other than Justice Neil Gorsuch, a Trump appointee.
As with most major Supreme Court decisions, the Equal Employment Opportunity Commission then wrote guidance so that businesses, HR departments, and employees could easily see what the law is. By way of example, “harassment” means things like cruel nicknames for gay people or using the F-word, insisting on referring to a same-sex spouse as a roommate, calling trans people by the wrong name or pronoun, refusing to give trans people bathroom access, etc. It’s pretty common-sense stuff, but by following the EEOC’s guidance employers can protect themselves from getting sued. The guidance went through a lengthy process where it was vetted by employers, unions, and HR specialists before ultimately being voted on by the EEOC commissioners.
In what has become a common practice, Texas Attorney General Ken Paxton and the Heritage Foundation jointly sued to void the EEOC’s guidance. The Heritage Foundation is the organization that wrote Project 2025 and has taken the lead in rolling back LGBTQ+ civil rights, marriage rights, PrEP access, and basically any gains we’ve made in the past 50 years. They didn’t file their lawsuit in Washington, D.C. where the EEOC resides and the regulations were written. They filed in Amarillo, Texas where Judge Kacsmaryk has built a reputation as the go-to judge for aggressive, extremely conservative opinions from abortion to immigration. In a nutshell, Judge Kacsmaryk took Paxton and the Heritage Foundation’s brief and turned that into a legal order. The order strikes down the EEOC guidance protecting gay and trans workers. Beyond that, the opinion wildly misinterpreted the Bostock decision to claim that Title VII does not protect workers from discrimination or harassment because of their sexual orientation or gender identity
Complicating things, Trump “fired” two of EEOC commissioners appointed by Biden, despite their being confirmed by Congress to a fixed term – a mini-Constitutional crisis in itself. This means that the EEOC currently consists of only two commissioners. The EEOC doesn’t even have a quorum to make many decisions. It is clear they won’t appeal this ruling and Kacsmaryk’s decision will stand.
As a gay-rights lawyer, I’m angry about the assault on LGBTQ+ rights and I’m also angry about the assault on the rule of law. We play by the rules. The Bostock opinion was a long time coming and resulted from years of following the process through the district and appellate courts. We made reasoned arguments and ended up with a Supreme Court opinion that is surprisingly bipartisan. When the EEOC wrote its guidance, it published drafts, sought input from all sides, and passed it thought the formal administrative process. On the other hand, Paxton turned the keys of state government over to the Heritage Foundation, who filed with a hand-picked judge, who issued a horribly flawed opinion, that the Trump EEOC will not appeal.
The silver lining is that Bostock is still the law of the land. While there won’t be EEOC guidelines that employers and employees can follow, lawyers like me will point to Bostock in suing businesses that allow discrimination against their gay and trans workers. I’ve been doing this for twenty-five years and I would have no hesitation in suing an employer who denied bathrooms to trans workers or who allowed a gay employee to be bullied. But that’s the problem, we shouldn’t still be in court on this. We should have won and be able to move on to the next fight.
I hope this is a wakeup call and we do not sleepwalk through the erosion of our employment rights. There can be no doubt that this same playbook will be used for marriage rights, educational curriculums, HIV drugs, gender-affirming care, adoption, surrogacy, and IVF access. Because the other side is willing to fight dirty and win, we must step up our own advocacy and make sure our hard-won rights aren’t stolen by bigots and extremists.
*Robert J. Wiley is the co-chair of the National Employment Lawyers Association Committee on Sexual Orientation and Gender Identity Discrimination, a former president of the Dallas-Fort Worth Employment Lawyers Association, a former award-winning chair of the Dallas Bar Association Labor and Employment Law Section, and the founder and first president of the Dallas Gay and Lesbian Bar Association (now the Dallas LGBT Bar Association). Mr. Wiley is board certified in labor and employment law by the Texas Board of Legal Specialization. Rob Wiley, P.C. represents workers in legal disputes with their employers with offices in Dallas, Austin, and Houston.