WASHINGTON — Two sessions at the American Bar Association’s 2026 Labor & Employment Law conference this past weekend highlighted attorneys’ suspicions that a potential wave of religious discrimination claims against employers is on its way — relevant given the U.S. Equal Employment Opportunity Commission’s shifting priorities highlighted in a nomination and a nominee hearing this week.
At one ABA LEL session on Saturday, in which attorneys discussed the U.S. Equal Employment Opportunity Commission’s public distancing from LGBTQ+ discrimination claims, Nonnie Shivers, a shareholder at Ogletree Deakins, discussed the landmark case Bostock vs. Clayton County, Ga. Fellow attorneys Andrew Adelman, principal at Joseph, Greenwald and Laake PA, and Samantha Peters, founder and principal lawyer at Black Femme Legal, joined Shivers at the session.
The attorneys highlighted how, under Title VII of the Civil Rights Act, Bostock set a precedent regarding the hiring and firing of LGBTQ+ individuals — but didn’t address bathrooms, locker rooms or gendered spaces, for example. The future of discrimination claims may be fought on the bathroom battleground, with religious accomodations in focus.
The foundation built by ongoing case law
Employers are in a challenging position, attorneys illustrated, as they’re caught between the LGBTQ+ protections on the books in several states and Washington, D.C., and case law.
One notable case that does address the question of gendered work spaces is Selina S. v. Driscoll, where EEOC ruled that Title VII permits federal agencies to ban transgender workers from using bathrooms that correspond with their gender identity. Shivers noted that while the case applies to federal workers, EEOC’s ruling could have implications for private employers — particularly on the issue of bathroom and locker room use.
“I think we will see this as we start to see religious claims as the basis to challenge bathroom usage. Really, in the next two years, I assure you that that’s where we’re going to see a predominant uptick,” Shivers said. Coming back to the patchwork of different laws, precedents and guidances, she added, “I think we need to look at those contradictions to say, ‘How are we practically going to deal with this?’”
“What I deal with every day is, ‘Hey, we have so-and-so saying they have a religious right not to urinate beside someone who’s transitioning.’ That’s a stretch, but we know the EEOC is going to take up the mantle on that — but not the state agencies,” she said, adding that the question then becomes: How do employers balance the realities of EEOC’s current approach to enforcement with preserving workers’ rights?
Notably, in Selina S. v. Driscoll, the court compared religious accomodation to pregnancy accommodation under Title VII; the judge described how Title VII grants “most favored status” to religion in particular, so a worker must be granted reasonable accommodation for religious expression. The court argued, however, that the same was not true for transgender individuals under Title VII.
Another ABA LEL session on Saturday grappled with the problems that EEOC’s distinct approach to enforcement has caused employers.
Puamuh Ghogomu, associate general counsel at W.W. Grainger, moderated a session with Lisa Banks, a founding partner of Katz Banks Kumin LLP; Victoria Lipnic, a former EEOC commissioner and partner at Resolution Economics; and Camille Olson, partner at Seyfarth Shaw LLP.
Employers may now have to think about whether a training caused an individual to experience a hostile work environment — particularly if there was a religious objection, Lipnic said. She added that employers and their legal counsel should pay close attention to the outcome of the EEOC v. Coca-Cola Beverages Northeast case for this reason, as it could set a precedent for the tone of upcoming discrimination cases.
“I think we’re going to see more of them, and I think they’re going to be cued to the issue of alleged accommodations relating to religious and other protections,” Olson agreed.
Looking ahead: Even stronger EEOC enforcement
Early on in Trump 2.0, EEOC doubled down on religious rights, with Lucas lauding the agency’s dogged protection of religious rights in an August 2025 statement.
“During the previous administration, workers’ religious protections too often took a backseat to woke policies. Under my leadership, the EEOC is restoring evenhanded enforcement of Title VII — ensuring that workers are not forced to choose between their paycheck and their faith,” Lucas said.
Trump announced Monday that he has nominated Matthew Zandi, chief of staff and special counsel in the U.S. Department of Justice, to an open EEOC commissioner slot. Alongside Chair Andrea Lucas and Commissioner Brittany Panuccio, Zandi’s appointment would solidify a Republican majority on the EEOC as well as potential longevity of Lucas’s agenda.
Additionally, the nomination of Catherine Eschbach for EEOC general counsel moved forward with a hearing on Tuesday. Eschbach explicitly named protecting the rights of religious Americans as one of her priorities, should she secure the appointment.
Based on attorneys’ insights from ABA LEL, employers have plenty of reasons to suspect that religious discrimination claims are the next frontier of employee-led anti-DEI action.