A federal judge in Tennessee took the rare step of issuing a preliminary injunction to block the Equal Employment Opportunity Commission from issuing guidance regarding employment discrimination based upon sexual orientation or gender identity. The case stems from the EEOC’s attempt to implement the Supreme Court’s landmark 2020 ruling in Bostock v. Clayton County, which held that Title VII’s ban on sex discrimination applied to discrimination based on sexual orientation or transgender status.
After Bostock, the EEOC issued a technical assistance document on June 15, 2021, which put forth revised guidance in light of the Supreme Court’s expansion of Title VII’s coverage. The document contained a “Frequently Asked Questions” section which advised employers of the accommodations they would have to make for transgendered individuals, including the following:
- May a covered employer require a transgender employee to dress in accordance with the employee’s sex assigned at birth?
No. Prohibiting a transgender person from dressing or presenting consistent with that person’s gender identity would constitute sex discrimination.
- Does an employer have the right to have separate, sex-segregated bathrooms, locker rooms, or showers for men and women?
Yes. Courts have long recognized that employers may have separate bathrooms, locker rooms, and showers for men and women, or may choose to have unisex or single-use bathrooms, locker rooms, and showers. The Commission has taken the position that employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity. In other words, if an employer has separate bathrooms, locker rooms, or showers for men 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.
Despite the EEOC guidance stating that it did “not have the force and effect of law and is not meant to bind the public in any way,” the agency nonetheless encouraged employees to file discrimination charges based upon the information contained in the paper. Those charges, of course, would be investigated with the full force of the agency. So much for not having “the force of law.”
After the EEOC issued this guidance, a number of states attorney generals sued, including those from Tennessee, Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, and West Virginia. They sought a preliminary injunction based upon the EEOC guidance impinging upon their sovereignty as free states to pass their own laws. For example, Tennessee has a statute providing “[a] student’s gender for purposes of participation in a public middle school or high school interscholastic athletic activity or event must be determined by the student’s sex at the time of the student’s birth,” as well as 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.” At least ten of the other states challenging the EEOC guidance have similar statutes. And, the court reasoned, there would be a direct conflict between enforcing these state laws and abiding by the EEOC guidance. The Plaintiff states would be forced to “choose between the threat of legal consequences—enforcement action, civil penalties, and the withholding of federal funding – or altering their state laws to ensure compliance with the guidance and avoid such adverse action.”
The District Court also noted the limited scope of the Supreme Court’s ruling in Bostock, which “explicitly refused to decide whether sex-segregated bathrooms, locker rooms, and dress codes violate Title VII.” Though the District Court granted the preliminary injunction sought by the plaintiff states, it did not issue a nationwide injunction. Those states (and employers in those states) which are not party plaintiffs must still follow the EEOC guidance.
Naturally, expect more litigation on this, and other related LGBTQ issues, as new battlefronts emerge in the wake of Bostock.