18 states challenge EEOC guidance on harassment based on gender identity

Dive Brief:

  • Tennessee — along with 17 other states — filed a lawsuit Monday against the U.S. Equal Employment Opportunity Commission, alleging the agency’s recently released harassment guidance unlawfully expands Title VII of the Civil Rights Act of 1964.
  • According to the complaint, while the agency relies on the Supreme Court’s Bostock v. Clayton County decision to inform its guidance, that decision’s “narrow holding” cannot be applied to “all transgender-related employment issues,” such as pronouns and bathroom use. “EEOC proposed essentially to amend Title VII to create a de facto accommodation for gender identity — even though Bostock did not address the accommodations context,” the plaintiffs alleged. 
  • Tennessee’s co-plaintiffs include Alabama, Alaska, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Nebraska, Ohio, South Carolina, South Dakota, Utah, Virginia and West Virginia.

Dive Insight:

In making its argument, Tennessee pointed to a similar, now-vacated technical assistance document promulgated by the EEOC in June 2021 — Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity — which also touched on dress codes, pronouns and sex-segregated spaces. That guidance sought to explain the Bostock decision and its implications to employers.

Tennessee and 19 other states sought an injunction in the U.S. District Court for the Eastern District of Tennessee — the same court now considering its request to halt the harassment guidance — arguing, as in the current case, that the agency misinterpreted the law as provided by Bostock

A judge granted a preliminary injunction for Tennessee and its co-plaintiffs in July 2022, and in a separate case pursued by Texas, a district court vacated the document that October.

The new harassment guidance reflects “essentially the same interpretation of Title VII’s prohibition on sex discrimination set forth in the agency’s vacated 2021 Guidance,” the states argued. “Thus, the Proposed Enforcement Document again attempted to extend Bostock to situations that the Court explicitly declined to ‘prejudge’ — e.g., bathrooms and pronouns — while also proposing to impose liability on employers for the conduct of their customers or other third parties.”

In addition to the lawsuit challenging the harassment guidance, Tennessee is also leading an effort joined by many of the same co-plaintiffs to halt an EEOC rule implementing the Pregnant Workers Fairness Act, specifically challenging its abortion accommodation provisions. 

A recent burst of rulemaking activity from various agencies appears a probable attempt to avoid the rules’ review and potential dismissal in the next session of Congress under the Congressional Review Act. The effort has led to a similar flurry of lawsuits from states, industry trade groups and employers challenging rules, including a U.S. Department of Labor fiduciary rule and the agency’s new overtime threshold.

EEOC did not respond to a request for comment by press time.