By Matt Gonzales

October 14, 2022

In October, the U.S. District Court for the Northern District of Texas concluded that the U.S. Equal Employment Opportunity Commission (EEOC) misapplied the U.S. Supreme Court’s ruling in Bostock v. Clayton County, Ga. in its June 2021 technical assistance document on LGBTQ workplace discrimination protections.

The EEOC’s guidance expanded the legal definition of sex discrimination to include sexual orientation and gender identity in employment situations. It stated that workers have the right to use a bathroom that corresponds to their gender identity and the right to be free of harassment, including intentional and repeated use of the wrong pronouns.

“The June 15 guidance imposes dress-code, bathroom and pronoun accommodations as ‘existing requirements under the law’ and ‘established legal positions’ in light of Bostock and prior EEOC decisions interpreting Title VII [of the Civil Rights Act of 1964],” Judge Matthew J. Kacsmaryk wrote. “But Title VII—as interpreted in Bostock—does not require such accommodations.”

The ruling stated that Title VII prevents employment discrimination based on sexual orientation and gender identity under Bostock. However, it doesn’t necessarily prohibit conduct specifically related to bathroom accommodations, dress codes and pronoun usage.

The court also vacated guidance issued in March 2022 by the U.S. Department of Health and Human Services (HHS) informing health care providers that access to gender reassignment surgery and other related medical treatments were rights of patients that could not be lawfully denied.

Kacsmaryk said that the EEOC’s guidance violated Title VII, the Administrative Procedure Act and its own agency rules by “issuing substantive, legislative rules through improper procedures.” He determined that the HHS document was “arbitrary and capricious” because the agency appears to “misstate the law” while failing to detail what went into its decision-making.

This isn’t the first time the EEOC’s technical assistance document has been met with litigation. In July, the U.S. District Court for the Eastern District of Tennessee temporarily blocked the guidance because it interfered with states’ sovereign authority to enforce their state laws.

EEOC Commissioner Applauds Court Decision

In a press release introducing the technical document, EEOC Chair Charlotte A. Burrows stated that all people, regardless of sexual orientation and gender identity, deserve an opportunity to work in an environment free from harassment or other discrimination.

She noted that the guidance “will make it easier for people to understand their rights and responsibilities related to discrimination based on sexual orientation and gender identity.” However, the agency was split on the document.

In an Oct. 6 tweet, EEOC Commissioner Andrea Lucas, a Republican, criticized the agency for its application of Bostock and Burrows, a Democrat, for issuing the guidance without “without vote and over the commission majority’s objections.”

“Given the substantive and administrative overreach here, I am pleased to see the federal court’s nationwide order, just as I was pleased in July to see a different federal court, in a separate lawsuit challenging the document, issue a temporary injunction blocking the unilateral policy document in 20 states,” Lucas said.

Employment Lawyers React to News

Peter Spanos, an attorney with law firm Taylor English Duma LLP in Atlanta, said that the central problem with the EEOC’s guidance document is that it attempted to use the Bostock decision to address questions that the majority opinion of the Supreme Court expressly declined to decide.

Justice Neil Gorsuch’s opinion states, “the only statutorily protected characteristic at issue in today’s cases is ‘sex’ ” but does not refer to any activities or assertion of rights to forms of conduct and expression, Spanos noted.

“The Supreme Court’s majority opinion repeatedly cautions that the decision does not reach questions of what conduct or activities of LGBTQ individuals may or may not be protected by Title VII,” Spanos said. “In accordance with the limited scope of the Bostock decision, the U.S. District Court’s ruling in State of Texas v. EEOC struck down the EEOC and Health and Human Services guidance as not authorized by the Supreme Court.”

Mark Kluger, founder of law firm Kluger Healey LLC in Fairfield, N.J., said that the Texas federal court decision exemplifies the ongoing struggle between federal administrative agencies and the courts over those agencies’ statutory authority.

“Other memorable struggles between federal agencies and the courts have involved the Department of Labor’s effort to implement new overtime rules under the Fair Labor Standards Act and, more recently, [Occupational Safety and Health Administration]’s attempt to implement a COVID vaccine mandate,” Kluger noted.

He said that federal agencies in many instances have “objectively exceeded” their congressional mandates and rulemaking authority.

“In regard to the EEOC guidance, while its future may be uncertain, employers and their lawyers must ultimately keep an eye on Bostock’s progeny in the lower courts to better understand the scope of employee rights that will evolve from the high court’s decision,” Kluger said.