On June 15, 2020, the Supreme Court ruled that Title VII of the 1964 Civil Rights Act protects LGBTQ rights (Bostock v. Clayton County Georgia, No. 17-1618 (June 15, 2020)). Before the decision, 21 states had their own laws prohibiting job discrimination based on sexual orientation or gender identity, and seven more provided that protection only to public employees. Michigan just recently added itself to the list.
However, the court decision did not address a variety of issues from the conflict of religious beliefs with sexual orientation and gender identity, bathrooms, locker rooms, dress codes etc. The court stated specifically, “Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind.” Furthermore, the court stated that “[w]hether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.”
Regardless, the EEOC decided to tread where no court was going and submitted a guidance for employers that would settle the hard issues from bathrooms to pronouns and everything in between. The three (and majority) Republican Commissioners objected with the issuing of the guidance. The guidance included notations that the commission wasn't adopting new policy but rather outlining its "established legal positions" on LGBTQ-related matters that had been adopted in part through federal sector administrative decisions. The EEOC also made it clear that the guidance lacked the force of law and wasn't binding on the public or on employers. Gerald Maatman, leader of the workplace class action group at Duane Morris LLP, said the guidance was "arguably a form of 'stretching the legal envelope' in terms of how the EEOC desires Bostock to obligate employers to do certain things in the workplace."
"These documents go beyond the scope of the Supreme Court's decision in Bostock, and thus required a vote of the full commission," Commissioner Janet Dhillon said in a statement. "This was also an opportunity for the full commission to provide guidance with bipartisan support on this important issue."
Commissioner Lucas agreed with Commissioner Dhillon. "I agree that many of the issues should be addressed in detail as they relate to the workplace," Commissioner Lucas said in a statement at the time. "But for the EEOC to do so properly would require the commission to work together, debate, hold meetings, and, most importantly, vote on the standards it seeks to apply to the nation's workforce in guidance, as informed by Bostock's holding and finalized after providing stakeholders with notice and the opportunity to comment."
A Texas court agreed with the Republican Commissioners. In State of Texas v. EEOC, No. 21-00194, (N.D. Tex., 10/1/22) concluded that the commission's guidance went "beyond informing the public and expressing the agencies' views as to Bostock's effect" in interpreting Title VII. The judge said the document "binds agency staff and the public because of its mandatory language."
So back to the drawing board for the time being for the EEOC until a third Democratic Commissioner is confirmed. If so, they may again for the guidance in open forum, and again there will likely be a lawsuit for the same reasons as before, that the EEOC is going beyond the ruling of the Supreme Court. It is unlikely at this time for the EEOC to appeal because Texas is part of the area that U.S. 5th Circuit Court of Appeals covers and the 5th Circuit that has been traditionally hostile to extended reaches of government regulation. If appealed and then again appealed to the Supreme Court down the road, it is likely the Supreme Court will throw out the guidance as well as exceeding the EEOC authority. But this is all conjecture.
There are many issues to be litigated and the most important coming up is whether someone’s religious beliefs can override the 14th amendment of equal protection under the law. It is recommended that employers continue doing what they are doing and consult with legal counsel when they wish to go above and beyond like the guidelines were recommending.
Source: Gateway Pundit 10/8/22, Law360 10/5/22, Bloomberg Law 10/3/22, Law360 6/15/21