A federal judge granted a motion for preliminary injunction filed by 20 states that, in part, sought to block enforcement of a U.S. Equal Employment Opportunity Commission technical assistance document outlining Title VII protections against sexual orientation or gender identity discrimination (Tennessee v. U.S. Department of Education, No. 3:21-cv-308 (E.D. Tenn. July 15, 2022)).
In the suit, the states argued that a series of guidance documents issued by the Biden administration — including the EEOC document, issued June 15 — “directly interfere” with their ability to enforce state laws as written. The judge agreed, holding that the documents “presently harm” the 20 states “by undermining their sovereign authority to enforce their state laws as written and imposing substantial pressure on Plaintiffs to change their state laws.”
Judge Charles E. Atchley Jr.’s injunction will impact documents issued by the EEOC as well as the U.S. Department of Education and the U.S. Department of Justice. Agencies published the documents in response to Executive Order 13988, which partly directed regulators to promulgate new agency actions in order to complement sex discrimination prevention statutes such as Title VII of the Civil Rights Act.
President Joe Biden’s executive order honed in on gender identity and sexual orientation discrimination protections in light of the U.S. Supreme Court 2020 ruling in Bostock v. Clayton County, Georgia. The court held that Title VII’s prohibition of discrimination on the basis of “sex” extended to discrimination on the basis of an individual’s gender identity or sexual orientation.
EEOC’s June 15 document reiterated the Bostock decision and addressed related workplace issues, such as dress codes and sex-segregated bathroom policies.
The states alleged that such conclusions conflicted with their own statutes. Tennessee, for example, “has a statute providing public school students, teachers, and employees with a cause of action against a school that ‘intentionally allow[s] a member of the opposite sex to enter [a] multi-occupancy restroom or changing facility while other persons [are] present,’” Atchley Jr. said.
Such provisions fundamentally alter employer obligations under Title VII in ways the Supreme Court in Bostock did not intend, the judge added.
“The Technical Assistance Document takes firm stances regarding what specific employer conduct constitutes impermissible sex discrimination under Title VII,” Atchley Jr. said. “Bostock does not require Defendants’ interpretations of Title VII and IX. Instead, Defendants fail to cabin themselves to Bostock’s holding.”
The aftermath of the injunction brought insight into the partisan divide within EEOC over the issue of Title VII’s LGBTQ protections. In a statement posted to Twitter, Commissioner Andrea Lucas, a Republican appointee of former President Donald Trump, called the decision “a welcome development.” Lucas added that EEOC’s guidance was “unilaterally issued” by Chair Charlotte Burrows, a Democrat, and was not endorsed by a majority vote of the EEOC.
“Although [Burrows’] document carries the modest name ‘technical assistance,’ it has little to do with facilitating understanding of, or adherence to, the Bostock decision,” Lucas said. Lucas also referred to the document’s discussion of issues such as dress codes and bathroom policies as a “sleight of hand” that “is inexplicable when juxtaposed with the [Supreme Court’s] decision in Bostock, including its express statements that its decision did not concern, much less resolve, some of these critical issues.”
"Under EEOC’s procedural regulations, the Chair may issue technical assistance that simply 'reiterate[es] already established Commission policies' without presenting the new document to the Commission for a vote," an EEOC spokesperson told HR Dive in an email. "Consistent with that definition of technical assistance, the fact sheet issued in June 2021 summarized the Supreme Court’s decision in Bostock v. Clayton County and then reiterated EEOC’s established and longstanding positions on a variety of issues relating to sexual orientation and gender identity discrimination. For each of those established legal positions, the fact sheet cited the federal sector decision in which a majority of the Commission voted in favor of the relevant legal principle. The EEOC’s procedural regulations did not require the Commission to vote again on whether the issues addressed in those prior federal sector decisions were still forms of sex discrimination."
"As in all cases, the EEOC will comply with court orders," the spokesperson added.