Employment & Labor Insider

In June 2021, the Equal Employment Opportunity Commission (or, to be more precise, EEOC Chair Charlotte Burrows, a Democrat*) issued non-binding guidance about LGBT workers. I blogged about it here.

The guidance was not too different from what employers were accustomed to under the Obama Administration. These were the most significant points:

• ♦ Employees have to be allowed to use the restrooms that correspond with their gender identity.
• ♦ "Dead naming" or using old pronouns with a transgender worker may not be unlawful if it's sporadic and accidental, but if it becomes frequent enough, then it could be considered harassment based on gender identity.

The State of Texas filed suit, claiming that the guidance was invalid for a number of reasons:

• ♦ It was issued unilaterally by Chair Burrows rather than being presented to the full five-member Commission for a vote (which, with a Republican majority, no doubt would have voted it down).*
• ♦ The public was given no notice or opportunity to comment, nor were the states or "other affected institutions and individuals."
• ♦ It exceeded the scope of Bostock.
• ♦ It violated the First and Eleventh amendments to the U.S. Constitution.

This week, a federal judge in Amarillo struck down the guidance based on the first three points, as well as guidance issued by the U.S. Department of Health and Human Services that related to federal funds for entities that restrict "gender-affirming" medical care and treatment for gender dysphoria.

I feel sure that the EEOC and the HHS will appeal. I also feel sure that Point No. 3 --  the Bostock issue -- is going to be huge in the workplace and everywhere else.

You recall that "Bostock" is Bostock v. Clayton County, the U.S. Supreme Court decision issued in June 2020, in which the Court ruled 6-3 that employment discrimination based on sexual orientation or gender identity violated Title VII of the Civil Rights Act of 1964. Title VII prohibits employment discrimination based on "sex." In a majority opinion written by Justice Neil Gorsuch, the Court said that "sex" for Title VII purposes included sexual orientation and gender identity. 

But Justice Gorsuch also made it clear that the decision applied to employment discrimination -- "[a]n employer who fires an individual merely for being gay or transgender" -- and not necessarily to other issues, like workplace dress codes, who uses which restroom, who uses which locker room, which pronouns should be used, or the extent of any religious exemptions.

The federal judge in Amarillo took Justice Gorsuch at his word, and found that the guidance was going beyond the SCOTUS ruling in Bostock:

Under [Texas]'s reading of Bostock, the State of Texas may not discriminate against an employee 'for being homosexual,' 'for being transgender' -- i.e., 'men for being attracted to men,' 'women for being attracted to women,' and 'persons with one sex identified at birth and another today' -- but may regulate correlated conduct via sex-specific dress, bathroom, pronoun, and healthcare policies, if otherwise consistent with Title VII case law.

(Emphasis in Texas v. EEOC.)

The can of worms I mentioned earlier? Now it looks like we could be in for a rash of litigation about bathrooms, pronouns, and dress codes in the workplace. Should be interesting. 

*Why did Chair Burrows issue the EEOC guidance on her own? The EEOC, believe it or not, still is a majority Republican commission. Republican former Chair Janet Dhillon's term expired this past July, but she can stay on through the end of this year if President Biden can't get a replacement confirmed. That means the majority of EEOC commissioners were very unlikely to have voted in favor of this guidance. So, from Chair Burrows' standpoint, it was issue the guidance unilaterally, or issue no guidance at all.