Federal Judge Rules EEOC’s 2021 Guidance is Unlawful

October 20, 2022

On October 1, 2022, a federal district court in Texas held that the EEOC’s Guidance that cited Bostock is unlawful. The court also held that the EEOC violated the Administrative Procedures Act by issuing rules without notice and an appropriate comment period.

In 2020, the Supreme Court decided Bostock v. Clayton County and held that employees were protected from discrimination on the basis of sexual orientation. Following the Bostock decision, in 2021 the EEOC released a guidance document for employers and employees that addressed “sex-based” bathroom policies. This guidance states “if an employer has separate bathrooms, locker rooms, or showers for man and women, all men (including transgender men) should be allowed to use the men’s facilities and all women (including transgender women) should be allowed to use the women’s facilities.” When the guidance was released, the EEOC stated that this guidance “is not new policy” and that the Commission had authority to issue such guidance. 

In response to this guidance, the State of Texas sued the EEOC, arguing that the guidance misinterpreted the established provisions under Title VII. In its complaint, the State asked the court to declare the guidance unlawful, vacate the guidance, and prevent the implementation of the guidance. In crafting its ruling, the court spent significant time analyzing the language used in Bostock and the 2021 EEOC guidance.  Under Bostock, Title VII prohibits employment discrimination on the basis of sexual orientation and gender identity but does not prohibit all correlated conduct. Ultimately, the court held that the EEOC misinterpreted Bostock because it “melded” the terms “status” and “conduct” into one “protected class” that covered all conduct relating to sexual orientation and gender identity. By issuing guidance that specifically prohibited employer conduct relating to dress code, pronouns, and bathroom usage, the court held that the EEOC exceeded its authority. The court also held that the EEOC violated the Administrative Procedures Act because it issued “substantive” and “legislative rules” without going through the formal rulemaking process.

Ultimately, this decision states that Bostock does not address whether specific conduct relating to sexual orientation or gender identity is protected under Title VII, rather just the fact that sexual orientation and gender identity are protected statuses under Title VII. This case is also notable because it highlights the importance of the rulemaking process and places limitations on how agencies issue guidance interpreting court rulings. 

For additional training about protected class discrimination, ICS is holding a Civil Rights Investigator training on October 26, 2022, and also offers online on-demand courses through its DEI University.