Caught in the middle: 3 places where EEOC rollbacks collide with California law

California employers are caught between two legal systems that are moving in opposite directions.

The Trump administration has reshaped U.S. Equal Employment Opportunity Commission enforcement priorities, dialing back protections for transgender employees; revoking guidance on harassment; and asserting that diversity, equity and inclusion initiatives may violate Title VII of the 1964 Civil Rights Act.

California has moved in the opposite direction over the past several years, codifying and actively enforcing protections under the Fair Employment and Housing Act and related regulations that expressly guarantee transgender employees the right to access restrooms and other facilities consistent with their gender identity and the right to be addressed by names and pronouns corresponding to their gender identity or expression.

Title VII sets a floor, not a ceiling. So, California employers should remain diligent to meet the requirements of state and federal law, even when those priorities seem to differ.

Below are three concrete examples where federal guidance and California law now point in opposite directions, and practical solutions for HR teams to address each issue.

1. Bathroom and facility access for transgender employees

In January, the EEOC rescinded its prior harassment guidance that said denying an employee access to a restroom consistent with the employee’s gender identity, or repeatedly and intentionally using incorrect pronouns, could support a sex-based harassment claim under Title VII.

A month later, the commission concluded that federal law permits employers to exclude transgender employees from facilities corresponding to their gender identity. Shortly before that decision, the U.S. District Court for the Northern District of Texas had reached a similar conclusion, finding that Title VII does not require employers to permit employees to use restrooms aligning with their gender identity.

California’s approach is unambiguous and unchanged. FEHA regulations give employees the right to use the restroom that corresponds to their gender identity, regardless of sex assigned at birth. That obligation is not affected by anything the EEOC has done. So, in California, employers still face potential liability for failing to honor such requests by transgender employees, regardless of the Trump administration’s rhetoric.

Bottom line: A California employer that restricts bathroom access based on biological sex, even in good-faith reliance on federal guidance, risks liability under California law. The federal rollback offers no protection in state court or before a state agency.

2. Pronoun use and intentional misgendering

EEOC Chair Andrea Lucas has been explicit about the current federal standard: acknowledging biological sex and using pronouns that reflect it, even intentionally, does not constitute harassment under Title VII. Federal courts addressing this issue, including the Texas federal court that invalidated prior EEOC harassment guidance, have similarly found that Title VII imposes no obligation on employers to prevent intentional misgendering.

California treats the same conduct as potential harassment. FEHA regulations give employees the right to be addressed by the name and pronouns corresponding to their gender identity or expression. A supervisor who repeatedly and intentionally misgenders a transgender employee exposes their employer to potential harassment claims — regardless of the federal position.

This is one of the most practical conflicts for HR teams. Harassment prevention training, manager coaching and anti-harassment policies should reflect California’s standard.

Bottom line: Intentional, repeated misgendering may result in liability under California law. Managers who treat the EEOC’s guidance as permission to ignore misgendering expose the company to liability that the federal posture cannot shield.

3. DEI programs and identity-conscious initiatives

In March 2025, the EEOC and U.S. Department of Justice jointly issued guidance warning employers that certain DEI practices may violate Title VII. Those agencies specifically stated that structured mentorship or sponsorship programs limited to employees of particular demographic groups, diversity-conscious interview slates and employee resource groups that restrict participation by protected characteristic may violate federal law.

California’s FEHA cuts in a different direction. Many of the DEI programs targeted by federal guidance exist precisely to prevent the kind of disparate impact that FEHA prohibits. Consider a structured sponsorship program designed to increase promotion rates for underrepresented employees; under the federal guidance, it may be characterized as discriminating against employees outside the identified group. Yet, under California law, dismantling it without examining the resulting data could expose the company to potential discrimination claims by the employees it was designed to help.

Employers who respond to the federal signal by quietly winding down DEI programs should do so carefully, with legal review of what those programs were designed to remedy and what the workforce data shows.

Bottom line: Before modifying or eliminating any structured DEI initiative in response to federal pressure, consider California protections for historically underrepresented groups. The analysis is not simply “the EEOC said we could.” It requires examining what FEHA obligations may require you to maintain.

What HR teams should do right now

Federal rollbacks do not mean California employers can stand down. California employers should consider four immediate steps to mitigate potential California liability notwithstanding current federal preferences:

• Audit written policies. Harassment prevention policies, bathroom access policies and any policy referencing gender identity need to be reviewed against FEHA standards — not Title VII as currently interpreted by the EEOC.
• Review harassment prevention training curricula. If your training vendor updated materials to reflect the EEOC’s retreat on pronouns or harassment standards, those updates likely don’t meet California’s requirements.
• Document California-compliant rationale for DEI programs. If you maintain identity-conscious mentorship, sponsorship or ERG programs, record the business and legal rationale. That documentation matters if the programs are later challenged.
• Help guide managers. The gap between what the EEOC says and what FEHA requires is now wide enough that supervisors operating on federal assumptions are a liability risk. The message is straightforward: California rules apply in California.